Cooper v. Paramo

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 SYDNEY COOOPER; aka Case No.: 3:20-cv01342-AJB-NLS

SIDNEY COOPER,

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CDCR #H-58566, ORDER:

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Plaintiff,

(1) DISMISSING CLAIMS AND

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vs. DEFENDANTS FOR FAILING TO

15 STATE A CLAIM AND AS

FRIVOLOUS PURSUANT TO 28

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DANIEL PARAMO, et al., U.S.C. § 1915(e)(2) & 28 U.S.C.

17 Defendants. § 1915A(b); AND

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(2) DIRECTING U.S. MARSHAL TO

19 EFFECT SERVICE ON

DEFENDANTS ROMERO AND

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GODINEZ

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23 I. Procedural History

24 On July 15, 2020, Sydney Cooper, also known as Sidney Cooper, (“Plaintiff”),

25 currently incarcerated at the Richard J. Donovan Correctional Facility (“RJD”) located in

26 San Diego, California and proceeding pro se, filed a civil rights complaint pursuant to 42

27 U.S.C. § 1983. (See Compl., ECF No. 1).

28 / / /

1 In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant

2 to 28 U.S.C. § 1915(a) (ECF No. 2). The Court GRANTED Plaintiff’s Motion to

3 Proceed IFP and DISMISSED his Complaint for failing to state a claim upon which relief

4 could be granted. (ECF No. 6.) The Court notified Plaintiff of the problems with his

5 pleading and granted him leave to file an amended complaint. (See id.) On September

6 14, 2020, Plaintiff filed his First Amended Complaint (“FAC”) (ECF No. 7.)

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

8 A. Standard of Review

9 As the Court previously informed Plaintiff, because he is a prisoner and is

10 proceeding IFP, his FAC requires a pre-answer screening pursuant to 28 U.S.C.

11 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a

12 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state

13 a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203

14 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2));

15 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C.

16 § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or

17 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d

18 903, 920 n.1 (9th Cir. 2014) (citation omitted).

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

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

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

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

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

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

25 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted

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

27 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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

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

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

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

5 judicial experience and common sense.” Id. The “mere possibility of misconduct” or

6 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

7 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

8 (9th Cir. 2009).

9 B. Plaintiff’s Factual Allegations

10 On August 4, 2015, Plaintiff “became a victim of a ‘theft’ committed by Officer

11 J.T. Delgado” due to Plaintiff’s “exercise of free speech.” (FAC at 5.) Plaintiff

12 “complain[ed] to the Lieutenant (Lt. Ortiz1) the following day” regarding Delgado’s

13 retaliation. (Id.) Plaintiff specifically alleges Delgado performed an “illegal cell search”

14 and confiscated his “Super 3 radio” for Plaintiff “exercising his free speech.” (Id.) Ortiz

15 “ordered” Delgado to issue Plaintiff a “cell search slip” but did not document “why the

16 radio was taken.” (Id.)

17 On August 10, 2015, Sergeant Scharr responded to Plaintiff’s grievance “falsely

18 stating, ‘you did receive a property receipt’” and the radio “has been turned over to

19 [Receiving and Releasing].” (Id. at 6.) Plaintiff claims this is a “false report” by Scharr

20 to “assist” Delgado in “covering up the act of theft.” (Id.)

21 On February 10, 2017, Plaintiff “was the victim of a ‘repeated act of theft’” when

22 Officer Rodriguez “in retaliation for Plaintiff exercising protected conduct camouflaged

23 an institutional search to steal the Plaintiff’s personal property.” (Id.) Plaintiff alleges

24 this was due to Plaintiff’s refusing to refrain from attending court hearings and filing staff

25 complaints.” (Id.)

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1 On May 4, 2017, Plaintiff was “out to the hospital to receive medical attention for

2 his hand” when Romero “left his assigned post” to “enter into Plaintiff’s housing unit to

3 perform an unauthorized and illegal cell search in direct ‘retaliation’ for the Plaintiff

4 attending court hearings and filing staff complaints.” (Id.) Plaintiff alleges Romero

5 “stole the Plaintiff’s R.C.A. flat screen tv, coaxial cable amplifier, and ‘personal muscle

6 photos’ of the Plaintiff.” (Id. at 7.) Romero “attempted to conceal a crime of ‘theft’ by

7 failing to even leave the required cell search slip.” (Id.)

8 On July 6, 2017, Sergeant Wall “denied the Plaintiff a ‘fair and impartial review

9 process’ when [Sergeant] Wall interviewed the Plaintiff regarding the previous ‘act of

10 theft and illegal retaliation’ committed by [Romero] on May 4, 2017.” (Id.) Plaintiff

11 alleges Sergeant Wall “tried to assist” Romero by lying about Plaintiff having a television

12 and “falsely claiming that [Romero] had never even entered the cell.” (Id.)

13 On July 7, 2017, Sergeant Godinez “violated Plaintiff’s right to ‘engage in

14 protected conduct’ and to be ‘free from cruel and unusual punishment’ and the right to

15 ‘equal protection of the laws,’ when he stood by and allowed [Romero] to stop Plaintiff

16 while on the way to morning chow and called him a ‘bitch.’” (Id. at 7-8.) Plaintiff claims

17 this was an “attempt to instigate a fight between the officers and Plaintiff.” (Id. at 8.)

18 Plaintiff further claims that this was due to Plaintiff “exercising protected conduct to

19 attend his judicial proceedings and fil[ing] staff complaints.” (Id.) Plaintiff alleges

20 Sergeant Godinez “joined [Romero] in retaliating against Plaintiff for the exercise of

21 protected conduct by ordering the Plaintiff to ‘remove his pants’” and warned Plaintiff to

22 “shut that shit down or we’re gonna do this everyday.” (Id.)

23 Plaintiff further claims Romero “stopped Plaintiff under the ‘gun tower’ and

24 ordered him to take off his ‘tennis shoes’ where he then got a knife and cut the strings out

25 of the tennis shoes.” (Id. at 9.) Plaintiff alleges Romero told him that “this is going to

26 happen every day” if he continues with his “judicial proceedings.” (Id.)

27 On October 2, 2017, Counselor Zavala “retaliated” against Plaintiff when he

28 purportedly “unlawfully made an attempt to falsify the Plaintiff’s medical record to

1 indicate something about Plaintiff’s medical status that his own Doctor never authorized

2 and were inconsistent with the Plaintiff’s medical condition.” (Id.) (emphasis in

3 original.) Plaintiff claims Zavala “attempted to use such ‘false medical records’ to

4 illegally transfer the Plaintiff to an institution that was higher than his security level as

5 punishment.” (Id.) (emphasis in original.)

6 On October 31, 2017, Litigation Coordinator McGuire “went behind the Plaintiff’s

7 back and told his counselor [Zavala] not to allow the Plaintiff to make any more court

8 calls to the San Diego Superior Court Case No. 37-2016-00037066-CU-WM.” (Id. at

9 10.) These “acts of misconduct” purportedly “automatically denied Plaintiff’s right to

10 have his day in court.” (Id.)

11 On February 23, 2019, Law Librarian Tiscornia “refused to confirm that the law

12 library possessed the required “APP-016/EW-016 Order on Court Fee Waiver Form.”

13 (Id. at 20.) In addition, she was “unwilling to utilize the state computer to simply

14 download a copy of the form to provide to Plaintiff upon request.” (Id.) Plaintiff alleges

15 that Tiscornia’s “behavior and conduct caused the Plaintiff’s appeal to get denied for not

16 being submitted timely” on February 19, 2019. (Id.)

17 On February 18, 2020, Litigation Coordinator Giurbino “refus[ed] to fall into

18 compliance with having Plaintiff ready to have a court appearance telephonically in the

19 yard gym on [July 17, 2020] at 11:00 a.m.” (Id. at 10.) Giurbino “arbitrarily created his

20 own requirement for Plaintiff to use ‘court call’ in order to attend his ‘court ordered’

21 hearing.” (Id.) Even when Plaintiff allegedly “utilized the ‘court call’,” Giurbino

22 purportedly still “refused and failed to have the Plaintiff appear telephonically on the

23 scheduled hearing date.” (Id. at 11.)

24 Plaintiff claims former RJD Warden Paramo “created and enforced an

25 unconstitutional ‘custom and policy’ that unlawfully allowed the blatant coordination and

26 ratification of staff misconduct and criminal acts of retaliation against prisoners who

27 sought to file staff complaints and pursue court action against such corrupt state

28 employees.” (Id.)

1 Plaintiff alleges the current RJD Warden Pollard “has now adopted and endorsed

2 the previous unconstitutional custom and policy that unlawfully allowed the blatant

3 condonation and ratification of staff misconduct and criminal acts of retaliation against

4 prisoners.” (Id. at 12.)

5 C. 42 U.S.C. § 1983

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

7 under color of state law, violate federal constitutional or statutory rights.” Devereaux v.

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

9 substantive rights, but merely provides a method for vindicating federal rights elsewhere

10 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks

11 and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1)

12 deprivation of a right secured by the Constitution and laws of the United States, and (2)

13 that the deprivation was committed by a person acting under color of state law.” Tsao v.

14 Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).

15 D. Statute of Limitations

16 As the Court found in the July 28, 2020 Order, Plaintiff’s claims against

17 Defendants Delgado and Scharr arose in 2015. (See FAC at 5-6.) These claims are

18 barred by the applicable statute of limitations. “A claim may be dismissed [for failing to

19 state a claim] on the ground that it is barred by the applicable statute of limitations only

20 when ‘the running of the statute is apparent on the face of the complaint.’” Von Saher v.

21 Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting

22 Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). “‘A complaint

23 cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of

24 facts that would establish the timeliness of the claim.’” Id. (quoting Supermail Cargo,

25 Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)); see also Cervantes v. City of San Diego,

26 5 F.3d 1273, 1276-77 (9th Cir. 1993) (where the running of the statute of limitations is

27 apparent on the face of a complaint, dismissal for failure to state a claim is proper, so

28 long as Plaintiff is provided an opportunity to amend in order to allege facts which, if

1 proved, might support tolling); see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

2 Planning Agency, 216 F.3d 764, 788 (9th Cir. 2000) (court may raise the defense of

3 statute of limitations sua sponte), overruled on other grounds by Gonzalez v. Arizona,

4 677 F.3d 383, 389 (9th Cir. 2011) (en banc); Hughes v. Lott, 350 F.3d 1157, 1163 (11th

5 Cir. 2003) (upholding sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B) of prisoner’s

6 time-barred complaint).

7 Because section 1983 contains no specific statute of limitation, federal courts apply

8 the forum state’s statute of limitations for personal injury actions. Jones v. Blanas, 393

9 F.3d 918, 927 (9th Cir. 2004); Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004);

10 Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). Before 2003, California’s statute of

11 limitations was one year. Jones, 393 F.3d at 927. Effective January 1, 2003, the

12 limitations period was extended to two. Id. (citing CAL. CIV. PROC. CODE § 335.1). The

13 law of the forum state also governs tolling. Wallace v. Kato, 549 U.S. 384, 394 (2007)

14 (citing Hardin v. Straub, 490 U.S. 536, 538-39 (1989)); Jones, 393 F.3d at 927 (noting

15 that in actions where the federal court borrows the state statute of limitation, the federal

16 court also borrows all applicable provisions for tolling the limitations period found in

17 state law).

18 Under California law, the statute of limitations for prisoners serving less than a life

19 sentence is tolled for two years. CAL. CIV. PROC. CODE § 352.1(a); Johnson v. California,

20 207 F.3d 650, 654 (9th Cir. 2000), overruled on other grounds, 543 U.S. 499 (2005).

21 Accordingly, the effective statute of limitations for most California prisoners is three

22 years for claims accruing before January 1, 2003 (one year limitations period plus two

23 year statutory tolling), and four years for claims accruing thereafter (two year limitations

24 period plus two years statutory tolling). In addition, the limitations period for prisoners is

25 tolled while the “prisoner completes the mandatory exhaustion process.” Brown v. Valoff,

26 422 F.3d 926, 943 (9th Cir. 2005).

27 Unlike the length of the limitations period, however, “the accrual date of a § 1983

28 cause of action is a question of federal law that is not resolved by reference to state law.”

1 Wallace, 549 U.S. at 388; Hardin, 490 U.S. at 543-44 (federal law governs when a

2 § 1983 cause of action accrues). “Under the traditional rule of accrual ... the tort cause of

3 action accrues, and the statute of limitation begins to run, when the wrongful act or

4 omission results in damages.” Wallace, 549 U.S. at 391. Put another way, “[u]nder

5 federal law, a claim accrues when the plaintiff knows or has reason to know of the injury

6 which is the basis of the action.” Maldonado, 370 F.3d at 955; TwoRivers v. Lewis, 174

7 F.3d 987, 991 (9th Cir. 1999).

8 Thus, assuming Plaintiff is not serving a life sentence, he is entitled to an

9 additional two (2) years of statutory tolling pursuant to CAL. CIV. PROC. CODE § 352.1(a).

10 Johnson, 207 F.3d at 654; see also Jones, 393 F.3d at 928 n.5 (noting that “California

11 courts have read out if the statute the qualification that the period of incarceration must

12 be ‘for a term less than for life’ in order for a prisoner to qualify for tolling.”).

13 Here, once again the Court finds Plaintiff’s claims against Delgado and Scharr

14 accrued in 2015 and he should have filed this action against them in 2019. (See FAC at

15 5-6.) Plaintiff has alleged no facts to show that he is entitled to equitable tolling.

16 Consequently, based on the face of Plaintiff’s own pleading, it is clear Plaintiff’s claims

17 against Delgado and Scharr fall outside California’s two-year statute of limitations, even

18 including all presumed periods of tolling provided by statute. See Wallace, 591 U.S. at

19 391; Maldonado, 370 F.3d at 955; CAL. CODE CIV. PROC. § 335.1 (tolling statute of

20 limitations “for a maximum of 2 years” during a prisoner’s incarceration).

21 Because the Court previously notified Plaintiff of the deficiencies of his claims

22 against Delgado and Scharr and he failed to make any attempt to correct them, the Court

23 DISMISSES these claims for failing to state a claim without leave to amend.

24 E. Duplicative claims

25 It appears that Plaintiff did bring the same claims against Defendant Delgado in

26 2016 in San Diego Superior Court Case No. 37-2016-000037066-CU-WM-CTL.

27 Plaintiff’s claims against Delgado are also subject to sua sponte dismissal because they

28 appear to be duplicative of the action he filed in San Diego Superior Court. A court

1 “‘may take notice of proceedings in other courts, both within and without the federal

2 judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v.

3 Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285

4 F.3d 801, 803 n.2 (9th Cir. 2002)).

5 A prisoner’s complaint is considered frivolous under 28 U.S.C. § 1915(e)(2)(B)(i)

6 if it “merely repeats pending or previously litigated claims.” Cato v. United States, 70

7 F.3d 1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations

8 and internal quotations omitted). In the matter Plaintiff filed in state court against

9 Delgado he “alleged a correctional officer stole his radio and prison officials obstructed

10 his attempts to file complaint about the theft and correctional officers’ subsequent

11 retaliatory actions” in 2015. Cooper v. California Dep’t of Corrections and

12 Rehabilitation, et al., 2019 WL 6167130 at *1 (Cal. App. 4th, Div. 1 2019.) Because

13 Plaintiff has already brought the same claims against Delgado presented in the instant

14 action, the Court must dismiss these duplicative claims pursuant to 28 U.S.C.

15 § 1915(e)(2)(B)(i). See Cato, 70 F.3d at 1105 n.2.

16 F. Retaliation claims

17 While the Court finds that Plaintiff has adequately stated a First Amendment

18 retaliation claim against Defendants Godinez and Romero, Plaintiff has failed to state a

19 First Amendment retaliation claim against any other Defendant.

20 “Within the prison context, a viable claim of First Amendment retaliation entails

21 five basic elements: (1) An assertion that a state actor took some adverse action against

22 an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4)

23 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not

24 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559,

25 567-68 (9th Cir. 2005) (internal footnote omitted). Adverse action is action that “would

26 chill a person of ordinary firmness” from engaging in the protected activity. Pinard v.

27 Clatskanie School District 6J, 467 F.3d 755, 770 (9th Cir. 2006); see also White v. Lee,

28 227 F.3d 1214, 1228 (9th Cir. 2000). Plaintiff also must allege facts to show that the

1 exercise of his First Amendment rights was the substantial or motivating factor behind

2 Defendants’ conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,

3 287 (1977); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989).

4 Further, he bears the burden of pleading and proving the absence of legitimate

5 correctional goals for the conduct of which he complains. Pratt v. Rowland, 65 F.3d 802,

6 806 (9th Cir. 1995).

7 Plaintiff’s retaliation claims against Rodriguez and Zavala fail to state a claim

8 because he fails to identify how these Defendants were aware that he was engaging in

9 protected conduct. “Determining whether a complaint states a plausible claim for relief

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

11 experience and common sense.” Iqbal, 556 U.S. at 678. The “mere possibility of

12 misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall

13 short of meeting this plausibility standard. Id. Thus, the Court dismisses Plaintiff’s First

14 Amendment retaliation claims against Rodriguez and Zavala for failing to state a claim

15 upon which relief may be granted.

16 G. Due Process claims

17 It is not entirely clear, but it appears that Plaintiff is claiming that Wall violated his

18 due process rights when Wall interviewed him in relation to his grievance that he filed

19 against Romero. (See FAC at 7.) Plaintiff claims Wall “denied the Plaintiff a fair and

20 impartial review process.” (Id.)

21 However, an official’s allegedly improper processing of a prisoner’s grievances or

22 appeals, without more, does not serve as a sufficient basis for section 1983 liability.

23 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (prisoners do not have a “separate

24 constitutional entitlement to a specific prison grievance procedure.”) (citation omitted);

25 Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (due process not violated simply

26 because defendant fails properly to process grievances submitted for consideration); see

27 also Todd v. California Department of Corrections and Rehabilitation, 615 Fed. Appx.

28 415, 415 (9th Cir. 2015) (district court properly dismissed claim based on improper

1 “processing and handling of […] prison grievances,” since prisoners have no

2 “constitutional entitlement to a specific prison grievance procedure”) (citing Ramirez,

3 334 F.3d at 860) (quotation marks omitted); Shallowhorn v. Molina, 572 Fed. Appx. 545,

4 547 (9th Cir. 2014) (district court properly dismissed § 1983 claims against defendants

5 who “were only involved in the appeals process”) (citing Ramirez, 334 F.3d at 860).

6 Therefore, the Court finds Plaintiff’s conclusory claims against Defendant Wall are

7 insufficient to state any plausible due process claim upon which § 1983 relief may be

8 granted. See Iqbal, 556 U.S. at 678-79 (citations omitted).

9 H. Eighth Amendment

10 Plaintiff also makes allegations against Godinez and Romero that his right to be

11 “free from cruel and unusual punishment” was violated when Romero allegedly called

12 him a “bitch” while Godinez “stood by.” (FAC at 7-8.) However, allegations of verbal

13 harassment and abuse by themselves fail to state a claim cognizable under 42 U.S.C.

14 § 1983. See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996), as amended, 135 F.3d

15 1318 (1998) (disrespectful and assaultive comments by prison guards not enough to

16 implicate the Eighth Amendment).

17 Therefore, the Court finds Plaintiff’s claims against Godinez and Romero are

18 insufficient to state an Eighth Amendment claim upon which § 1983 relief may be

19 granted.

20 I. Access to Courts

21 Plaintiff alleges Defendants McGuire, Tiscornia, and Giurbino all took actions

22 against him that “automatically denied Plaintiff’s right to have his day in court.” (Id. at

23 9.)

24 Prisoners have a constitutional right to access to the courts. Lewis v. Casey, 518

25 U.S. 343, 346 (1996). The right is limited to the filing of direct criminal appeals, habeas

26 petitions, and civil rights actions. Id. at 354. Claims for denial of access to the courts may

27 arise from the frustration or hindrance of “a litigating opportunity yet to be gained”

28 (forward-looking access claim) or from the loss of a suit that cannot now be tried

1 (backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002); see

2 also Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (differentiating “between

3 two types of access to court claims: those involving prisoners’ right to affirmative

4 assistance and those involving prisoners’ rights to litigate without active interference.”).

5 However, Plaintiff must allege “actual injury” as the threshold requirement to any

6 access to courts claim. Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. An “actual

7 injury” is “actual prejudice with respect to contemplated or existing litigation, such as the

8 inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at 348; see also

9 Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the

10 “inability to file a complaint or defend against a charge”). The failure to allege an actual

11 injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to

12 show that a ‘non-frivolous legal claim had been frustrated’ is fatal.”) (quoting Lewis, 518

13 U.S. at 353 & n.4).

14 In addition, Plaintiff must allege the loss of a “non-frivolous” or “arguable”

15 underlying claim. Harbury, 536 U.S. at 413-14. The nature and description of the

16 underlying claim must be set forth in the pleading “as if it were being independently

17 pursued.” Id. at 417. Finally, Plaintiff must specifically allege the “remedy that may be

18 awarded as recompense but not otherwise available in some suit that may yet be

19 brought.” Id. at 415.

20 Here, Plaintiff fails to adequately plead he suffered an “actual injury” and he fails

21 to describe the nature or description of the underlying claims. Plaintiff’s only legal

22 matter which he claims was impacted by Defendants’ actions is San Diego Superior

23 Court Case No. 37-2016-00037066-CU-WM. (See FAC at 10.) A review of the state

24 court docket indicates that Plaintiff has been litigating this matter since 2016. See

25 Cooper v. CDCR, et al., No. 37-2016-00037066-CU-WM, Doc. No. 1. This matter was

26 only recently dismissed, and it was at the request of Plaintiff. Id., Doc. No. 396,

27 “Request for Dismissal without Prejudice,” filed by Plaintiff on August 25, 2020.

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1 Thus, the Court finds that Plaintiff’s FAC fails to include any “factual matter” to

2 show how or why any of the individual Defendant in this case caused him to suffer any

3 “actual prejudice” “such as the inability to meet a filing deadline or to present a claim,”

4 with respect to any case. Lewis, 518 U.S. at 348; Jones, 393 F.3d at 936; Iqbal, 556 U.S.

5 at 678. Because Plaintiff has failed to allege facts sufficient to show that any named

6 Defendant caused him to suffer any “actual injury” with respect to any non-frivolous

7 direct criminal appeal, habeas petition, or civil rights action he may have filed, see Lewis,

8 518 U.S. at 354, the Court finds Plaintiff’s access to courts claims must be dismissed for

9 failing to state a claim upon which § 1983 relief can be granted.

10 J. Individual Causation

11 Plaintiff claims against former Warden Paramo and current Warden Pollard are

12 based on their supervisory roles. (See FAC at 11-12.) However, Plaintiff fails to make

13 any factual allegations that either Paramo or Pollard had any personal involvement or

14 knowledge of the alleged constitutional violations. Without “further factual

15 enhancement” to show how, or to what extent, Defendants Paramo or Pollard may be

16 held personally liable for any constitutional injury, the Court finds Plaintiff’s claims

17 against them must necessarily rest on a theory of respondeat superior. See Iqbal, 556 U.S.

18 at 676-77. But “[v]icarious liability is inapplicable to ... § 1983 suits, [and] a plaintiff

19 must plead that each Government-official defendant, through [his] own individual

20 actions, has violated the Constitution,” in order to plead a plausible claim for relief. Id. at

21 676; see also Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) (supervisor may be

22 held liable under Section 1983 only if there is “a sufficient causal connection between the

23 supervisor’s wrongful conduct and the constitutional violation”) (citations and internal

24 quotation marks omitted); Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (when a

25 named defendant holds a supervisorial position, the causal link between the defendant

26 and the claimed constitutional violation must be specifically alleged); Victoria v. City of

27 San Diego, 326 F. Supp. 3d 1003, 1013 (S.D. Cal. 2018) (“Liability under § 1983 arises

28 only upon a showing of personal participation by the defendant.”); Jones v. Comm’ty

1 Redev. Agency of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se

2 plaintiff must “allege with at least some degree of particularity overt acts which

3 defendants engaged in” in order to state a claim).

4 For these reasons, the Court finds Plaintiff has failed to state a plausible claim for

5 relief against Defendants Paramo and Pollard.

6 K. CDCR

7 Plaintiff’s claims against the CDCR also must be dismissed. The CDCR is not a

8 “person” subject to suit under Section 1983 and is entitled to immunity from suit for

9 monetary damages under the Eleventh Amendment. See Seminole Tribe of Fla. v.

10 Florida, 517 U.S. 44, 53-54 (1996); Groten v. California, 251 F.3d 844, 851 (9th Cir.

11 2001) (citing Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993)); see also

12 Dragasits v. California, No. 3:16-cv-01998-BEN-JLB, 2016 WL 680947, at *3 (S.D.

13 Cal. Nov. 15, 2016) (“The State of California’s Department of Corrections and

14 Rehabilitation and any state prison, correctional agency, sub-division, or department

15 under its jurisdiction, are not ‘persons’ subject to suit under § 1983.” (citing Groten, 251

16 F.3d at 851)). Accordingly, Plaintiff’s claims against the CDCR are dismissed sua

17 sponte for failure to state a plausible claim.

18 L. Remaining claims

19 As for the remaining retaliation claim against Godinez and Romero, the Court

20 finds Plaintiff’s FAC contains “sufficient factual matter, accepted as true,” to state a First

21 Amendment claim for relief that are “plausible on its face,” Iqbal, 556 U.S. at 678, and

22 therefore, sufficient to survive the “low threshold” set for sua sponte screening pursuant

23 to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123; Iqbal, 556 U.S.

24 at 678; Rhodes, 408 F.3d at 567-68. Therefore, the Court will direct the U.S. Marshal to

25 effect service of summons and Plaintiff’s FAC upon Defendants Godinez and Romero on

26 his behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all

27 process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court

28 may order that service be made by a United States marshal or deputy marshal ... if the

1 plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”).

2 III. Conclusion and Order

3 For the reasons explained, the Court:

4 1. DISMISSES Plaintiff’s claims against Delgado2 as frivolous pursuant to 28

5 U.S.C. § 1915(e)(2) and § 1915A(b).

6 2. DISMISSES Plaintiff’s claims against Defendants Scharr, Rodriguez,

7 Zavala, Wall, McGuire, Tiscornia, Giurbino, Wall, Paramo, Pollard and CDCR for failing

8 to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).

9 3. DISMISSES Plaintiff’s Eighth Amendment claims against Defendants

10 Godinez and Romero for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and

11 § 1915A(b).

12 4. DIRECTS the Clerk to issue a summons as to Plaintiff’s FAC for Godinez

13 and Romero (ECF No. 7) and forward it to Plaintiff counsel along with a blank U.S.

14 Marshal Form 285 for Defendants Godinez and Romero. In addition, the Clerk will

15 provide Plaintiff with a certified copy of the July 28, 2020 Order granting IFP status,

16 certified copies of his FAC, and the summons so that he may serve Defendants Godinez

17 and Romero. Upon receipt of this “IFP Package,” Plaintiff must complete the USM Form

18 285s as completely and accurately as possible, include an address where Defendant may

19 be found and/or subject to service pursuant to S.D. Cal. CivLR 4.1c., and return them to

20 the United States Marshal according to the instructions the Clerk provides in the letter

21 accompanying his IFP Package.

22 5. ORDERS the U.S. Marshal to serve a copy of the FAC and summons upon

23 Defendants Godinez and Romero as directed by Plaintiff on the USM Form 285s

24 provided to him. All costs of that service will be advanced by the United States. See 28

25

26

27 2 In Plaintiff’s original Complaint he appeared to spell Defendant Delgado’s name as “T.T. Delgado.”

However, in his FAC Plaintiff clarifies that the correct spelling is “J.T. Delgado.” The Clerk of Court is

28

1 || U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3).

2 6. ORDERS Defendants Godinez and Romero, once they have been served, to

3 reply to Plaintiff's FAC within the time provided by the applicable provisions of Federal

4 ||Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while Defendants may

5 occasionally be permitted to “waive the right to reply to any action brought by a prisoner

6 || confined in any jail, prison, or other correctional facility under section 1983,” once the

7 Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915(e)(2) and

8 1915A(b), and thus, has made a preliminary determination based on the face on the

9 || pleading alone that Plaintiff has a “reasonable opportunity to prevail on the merits,” the

10 || Defendant is required to respond).

11 7. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to

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

13 |}counsel, a copy of every further pleading, motion, or other document submitted for the

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

15 || original document he seeks to file with the Clerk, a certificate stating the manner in

16 || which a true and correct copy of that document has been was served on Defendants or

17 counsel, and the date of that service. See S.D. Cal. CivLR 5.2. Any document

18 received by the Court which has not been properly filed with the Clerk or which fails to

19 |/include a Certificate of Service upon the Defendants, or their counsel, may be

20 || disregarded.

21 IT ISSO ORDERED.

22

23 Dated: October 1, 2020 ©

24 Hon, Anthony J.Battaglia

25 United States District Judge

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