“A district court should not dismiss a pro se complaint without leave to amend 15 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the 16 deficiencies of the complaint could not be cured by amendment.’”
How later courts described this case
- “A district court should not dismiss a pro se complaint without leave to amend 15 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the 16 deficiencies of the complaint could not be cured by amendment.’”
- noting that claims dismissed with leave to amend 25 which are not re-alleged in an amended pleading may be “considered waived if not 26 repled.”
- noting that screening pursuant to § 1915A “incorporates the familiar standard 8 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 9 12(b)(6)”
- discussing 28 U.S.C. § 27 1915A(b)
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
9
10 WILLIAM HEARN, Case No.: 3:22-cv-00255-TWR-AGS
CDCR# AS-7111,
11
ORDER: (1) GRANTING MOTION
Plaintiff,
12 TO PROCEED IN FORMA
vs. PAUPERIS; (2) SCREENING
13
COMPLAINT PURSUANT TO 28
RJD WARDEN, E. FRIJAS, M.
14 U.S.C. §§ 1915(e)(2)(B) & 1915A.
POLLARD, JOHN DOE 1 to 8,
15 Defendants. (ECF No. 2)
16
17
18 William Hearn (“Plaintiff” or “Hearn”), currently incarcerated at the Richard J.
19 Donovan Correctional Facility (“RJD”), and proceeding pro se, has filed this civil action
20 pursuant to 42 U.S.C. § 1983. (The “Compl.,” see ECF No. 1.) Hearn has not paid the
21 $402 civil filing fee; instead, he has filed a Motion to proceed in forma pauperis (“IFP”)
22 pursuant to 28 U.S.C. § 1915(a). (See ECF Nos. 2, 4.) Hearn alleges his First and Eighth
23 Amendment rights were violated by Defendants. (See generally Compl.)
24 I. Motion to Proceed in forma pauperis
25 All parties instituting any civil action, suit or proceeding in a district court of the
26 United States, except an application for writ of habeas corpus, must pay a filing fee of
27
28
1 $402. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
2 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
3 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
4 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to
5 proceed in forma pauperis remains obligated to pay the entire fee in increments or
6 “installments,” regardless of whether his action is ultimately dismissed. See 28 U.S.C.
7 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002); Bruce v.
8 Samuels, 577 U.S. 82, 84 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015).
9 Section 1915(a)(2) requires prisoners seeking leave to proceed in forma pauperis to
10 submit a “certified copy of the trust fund account statement (or institutional equivalent) for
11 . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
12 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified
13 trust account statement, the Court assesses an initial payment of 20% of (a) the average
14 monthly deposits in the account for the past six months, or (b) the average monthly balance
15 in the account for the past six months, whichever is greater, unless the prisoner has no
16 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody
17 of the prisoner then collects subsequent payments, assessed at 20% of the preceding
18 month’s income, in any month in which his account exceeds $10, and forwards those
19 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
20 In support of his Motion to Proceed in forma pauperis, Plaintiff has submitted a copy
21 of his CDCR inmate trust account statement and prison certificate. See ECF No. 4; 28
22 U.S.C. § 1915(a)(2); S.D. CAL. CIVLR 3.2; Andrews, 398 F.3d at 1119. This statement
23 shows that in the six months preceding filing, Plaintiff has had average monthly deposits
24
25
1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative
26
fee of $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
27 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020). The additional $52 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
28
1 of $20.00 and an average monthly balance of $1,054.67. See ECF No. 4 at 1. At the time
2 of filing, he had $278.41 on account at RJD. Id.
3 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed in forma pauperis (see
4 ECF No. 2) and assesses an initial partial filing fee of $210.93 pursuant to 28 U.S.C.
5 Section 1915(b)(1). The Court directs the Secretary of the CDCR, or his designee, to
6 collect this initial filing fee only if sufficient funds are available in Plaintiff’s account at
7 the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event
8 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or
9 criminal judgment for the reason that the prisoner has no assets and no means by which to
10 pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 281 F.3d at 850 (finding
11 that 28 U.S.C. Section 1915(b)(4) acts as a “safety-valve” preventing dismissal of a
12 prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available
13 to him when payment is ordered.”). The Court further directs the Secretary of the CDCR,
14 or his designee, to collect remaining balance of the $350 total fee owed in this case as
15 required by 28 U.S.C. Section 1914 and to forward it to the Clerk of the Court pursuant to
16 the installment payment provisions set forth in 28 U.S.C. Section 1915(b)(1).
17 II. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A
18 A. Standard of Review
19 Because Hearn is a prisoner and is proceeding in forma pauperis, his Complaint
20 requires a preliminary screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).
21 Under these statutes, the Court must review and sua sponte dismiss an in forma pauperis
22 complaint, and any complaint filed by a prisoner seeking redress from a governmental
23 entity, or officer or employee of a governmental entity, which is frivolous, malicious, fails
24 to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith,
25 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2));
26 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. §
27 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or
28 malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d
1 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d
2 680, 681 (7th Cir. 2012)).
3 “The standard for determining whether a plaintiff has failed to state a claim upon
4 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
5 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
6 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
7 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
8 applied in the context of failure to state a claim under Federal Rule of Civil Procedure
9 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted
10 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
11 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
12 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
13 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
14 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief
15 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial
16 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,
17 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility
18 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
19 B. Plaintiff’s Allegations
20 Hearn alleges his First and Eighth Amendment rights were violated by Defendants.
21 (See generally Compl.) Hearn states that he wears hearing aids which at the time of the
22 events in question had not been working properly. (See Compl. at 3.) He claims he
23 complained to prison staff about the hearing aids and about his lack of access to the mental
24 health EOP program and was “lashing out at building 15 staff . . . [in order] to get a program
25 Sgt. [to] come talk to him.” (See id. at 3–4.) Between March 2021 and April 27, 2021,
26 Hearn alleges he reported being retaliated against “for his behavior and for complaining to
27 the ADA Sgt.” (See id. at 4.)
28
1 On April 15, 2021, he got into an argument with the building 15 officer. (See id.)
2 Hearn could not understand what the officer was saying, and the officer would not allow
3 Hearn to read his lips. (See id.) Hearn told the officer, “Fuck, what you’re talking about
4 dude, I’ll talk to the Sgt. at yard time.” (See id.) Hearn alleges a John Doe, the second
5 watch control officer for building 15, then retaliated against him by crushing his hand in
6 the cell door and refusing to open it for ten minutes. (See id.) According to Hearn, other
7 building 15 floor officers, who Hearn identifies only as “John Doe 1 to 8,” “were negligent
8 of duty by their lack of alertness and by retaliating against plaintiff.” (See id.) Following
9 this incident, the control tower Doe allegedly told Hearn, “[h]opefully this will teach you
10 to stop snitching on staff,” and Hearn claims Does 1 to 8 laughed at him, refused to provide
11 him medical treatment, and said “[h]opefully now you learn to mind your business” and
12 that if he continued to complain, “next time it might be [your] head.” (See id.)
13 Hearn claims he was not taken to the emergency room after he was injured. (See id.
14 at 5.) He further alleges he repeatedly requested medical attention from April 16, 2021
15 until April 20, 2021. (See id.) On April 29, 2021, Hearn claims “a nurse not wearing a
16 name tag told Plaintiff if he [filed a] 602 medical [grievance] that Dr. Michael L Pomerantz,
17 MD, would not give him medical care or treatment” on two occasions. (See id.) According
18 to Hearn, he was not treated for his injury until June 10, 2021. (See id.) On November 15,
19 2021, he was told his injury required surgery. (See id. at 6.) Hearn claims he was still
20 waiting for a third surgery to be performed on his hand on February 12, 2022. (See id.)
21 He also claims he has a “life-long hand disability and damage.” (See id. at 4.)
22 Hearn alleges that the Warden of RJD, and defendants Frijas and Pollard, all
23 retaliated against him for filing a grievance. He also claims he did not file a 602 regarding
24 his medical treatment because he was afraid Defendants would retaliate against him by
25 restricting his access to medical treatment. (See id.at 6.) Based on the described events,
26 Hearn alleges that his First and Eighth Amendment rights were violated by Defendants.
27 (See generally Compl.)
28 / / /
1 1. 42 U.S.C. § 1983
2 “Section 1983 creates a private right of action against individuals who, acting under
3 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,
4 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive
5 rights, but merely provides a method for vindicating federal rights elsewhere conferred.”
6 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations
7 omitted). “To establish § 1983 liability, a plaintiff must show both, (1) deprivation of a
8 right secured by the Constitution and laws of the United States, and (2) that the deprivation
9 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc.,
10 698 F.3d 1128, 1138 (9th Cir. 2012).
11 2. Eighth Amendment
12 The Eighth Amendment requires that inmates have “ready access to adequate
13 medical care,” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), and “deliberate
14 indifference to serious medical needs of prisoners” violates the Eighth Amendment. Estelle
15 v. Gamble, 429 U.S. 97, 104 (1976). “A prison official acts with ‘deliberate
16 indifference . . . only if the [prison official] knows of and disregards an excessive risk to
17 inmate health and safety.’” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)
18 (quoting Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), overruled on
19 other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016)).
20 “Under this standard, the prison official must not only ‘be aware of facts from which the
21 inference could be drawn that a substantial risk of serious harm exists,’ but that person
22 ‘must also draw the inference.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837
23 (1994)).
24 “Deliberate indifference ‘may appear when prison officials deny, delay or
25 intentionally interfere with medical treatment, or it may be shown in the way in which
26 prison physicians provide medical care.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th
27 Cir. 2014) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)).
28 “Inadvertent failures to provide adequate medical care, mere negligence or medical
1 malpractice, delays in providing care (without more), and differences of opinion over what
2 medical treatment or course of care is proper, are all insufficient to constitute an Eighth
3 Amendment violation.” Norvell v. Roberts, No. 20-cv-0512 JLS (NLS), 2020 WL
4 4464454, at *4 (S.D. Cal. Aug. 4, 2020) (citing Estelle, 429 U.S. at 105–07; Wood v.
5 Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990); Sanchez v. Vild, 891 F.2d 240, 242 (9th
6 Cir. 1989); Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.
7 1985)). Rather, “[t]o ‘show deliberate indifference, the plaintiff must show that the course
8 of treatment the [official] chose was medically unacceptable under the circumstances and
9 that the [official] chose this course in conscious disregard of an excessive risk to the
10 plaintiff’s health.’” Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 2019) quoting
11 Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016). “[A] purposeful act or failure
12 to respond to a prisoner’s pain or possible medical need,” which causes harm is sufficient
13 to establish deliberate indifference. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
14 i. RJD Warden, Frijas, and Pollard
15 With respect to RJD’s Warden, and defendants Frijas and Pollard, Plaintiff fails to
16 state a plausible Eighth Amendment claim for relief because he fails to include specific
17 factual allegations which describe how or when these officials were personally involved in
18 either the April 15, 2021 hand crushing incident or the subsequent failure to provide
19 medical care. See Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).
20 There is no respondeat superior liability under 42 U.S.C. § 1983. Palmer v.
21 Sanderson, 9 F.3d 1433, 1437-38 (9th Cir. 1993). “Because vicarious liability is
22 inapplicable to ... § 1983 suits, [Plaintiff] must plead that each government-official
23 defendant, through the official’s own individual actions, has violated the Constitution.”
24 Iqbal, 556 at 676; see also Jones v. Community Redevelopment Agency of City of Los
25 Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege with at least
26 some degree of particularity overt acts which defendants engaged in” in order to state a
27 claim). “A plaintiff must allege facts, not simply conclusions, t[o] show that [each
28 defendant] was personally involved in the deprivation of his civil rights.” Barren v.
1 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Estate of Brooks ex rel. Brooks
2 v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999) (“Causation is, of course, a required
3 element of a § 1983 claim.”).
4 As currently pleaded, Hearn’s Complaint offers no factual detail from which the
5 Court might reasonably infer a plausible Eighth Amendment claim on the part of the
6 Warden, Frijas or Pollard. (See generally Compl.) Hearn claims generally that RJD
7 Warden and Pollard both “had fiduciary duties” to carry out state and federal law, that RJD
8 Warden had a duty to “protect, keep safe does under his/her custody and to “train, supervise
9 and investigate,” and that M. Pollard had a duty to “uphold Title 15.” (See Compl. at 9.)
10 But violations of state or local law or prison regulations cannot be remedied under Section
11 1983 unless they also violate a federal constitutional or statutory right. See Davis v.
12 Scherer, 468 U.S. 183, 192 (1984). Supervisory officials may only be held liable under §
13 1983 if Plaintiff alleges their “personal involvement in the constitutional deprivation, or …
14 a sufficient causal connection between the supervisor’s wrongful conduct and the
15 constitutional violation.” Keates v. Koile, 883 F.3d 1228, 1242-43 (9th Cir. 2018); Starr
16 v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). Hearn makes no such allegations in his
17 Complaint. Moreover, the only allegations involving Frijas are that he refused to give: (1)
18 Hearn the names of the correctional officer working the control tower, and (2) the name of
19 the staff who were witnesses and did not stop the hand crushing incident. (See Compl. at
20 5.)
21 Therefore, the Court dismisses Hearn’s Eighth Amendment claims against RJD
22 Warden, Pollard, and Frijas sua sponte based on Hearn’s failure to state a plausible Eighth
23 Amendment claim against them. See 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1);
24 Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004; Iqbal, 662 U.S. at 678 (quoting
25 Twombly, 550 U.S. at 555, 570).
26 ii. Does 1 to 8
27 Hearn alleges that “defendant John Doe 2nd watch control officer” crushed his hand
28 in a cell door for over ten minutes in retaliation for getting into a verbal disagreement with
1 the building 15 officer. (See Compl. at 4.) He further alleges that “John Does 1 to 8
2 laugh[ed] at Plaintiff and refused to give him medical treatment or care” after his hand was
3 crushed. (See id.) These actions resulted in Hearn having “life-long hand disability and
4 damage,” and needing to undergo several surgeries to repair the damage to his hand. (See
5 id. at 4–6.) This is sufficient to state a plausible Eighth Amendment claim against and
6 Does 1 to 8. Iqbal, 662 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 570)2; see Jett,
7 439 F.3d at 1096 n.1 (finding prisoners fractured thumb was a serious medical need and
8 that prison doctors’ six-month delay in having thumb set in a case caused harm sufficient
9 to state an Eighth Amendment claim).
10 3. First Amendment Retaliation
11 “Prisoners have a First Amendment right to file grievances against prison officials
12 and to be free from retaliation for doing so.” Watison, 668 F.3d at 1114 (citing Brodheim
13 v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a viable claim
14
15
16
2 Plaintiff must identify Does 1 to 8 and substitute their true names in an amended pleading
17 before the United States Marshal will be ordered and/or able to execute service upon them.
See Aviles v. Village of Bedford Park, 160 F.R.D. 565, 567 (1995) (Doe defendants must
18
be identified and served within [90] days of the commencement of the action against them);
19 Fed. R. Civ. P. 15(c)(1)(C) & 4(m). Generally, Doe pleading is disfavored, Gillespie v.
Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), and in most instances it is impossible for the
20
United States Marshal to serve a party identified only as a Doe. See Walker v. Sumner, 14
21 F.3d 1415, 1422 (9th Cir. 1994) (in order to properly effect service under Rule 4 in an IFP
case, the plaintiff is required to “furnish the information necessary to identify the
22
defendant.”); Finefeuiaki v. Maui Cmty. Corr. Ctr. Staff & Affiliates, 2018 WL 3580764,
23 at *6 (D. Haw. July 25, 2018) (noting that “[a]s a practical matter, the United States
Marshal cannot serve a summons and complaint on an anonymous defendant.”). However,
24
the Court will not dismiss Does 1 to 8 as Defendants at this time because where the identity
25 of an alleged party is not known prior to filing of an action, Ninth Circuit authority permits
Plaintiff the opportunity to pursue appropriate discovery to identify the unknown Does,
26
unless it is clear that discovery would not uncover their identity, or his pleading requires
27 dismissal for other reasons. See Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir.
1999) (citing Gillespie, 629 F.2d at 642).
28
1 of First Amendment retaliation entails five basic elements: (1) An assertion that a state
2 actor took some adverse action against an inmate (2) because of (3) that prisoner’s
3 protected conduct, and that such action (4) chilled the inmate’s exercise of his First
4 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional
5 goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
6 i. Does 1 to 8
7 Hearn also alleges that Does 1 to 8 retaliated against him for complaining about his
8 broken hearing aids and lack of access to the EOP mental health program by crushing his
9 hand in a cell door for more than ten minutes. (See Compl. at 3–5, 7.) After his hand was
10 crushed, he also claims unidentified correctional officers Does 1 to 8 told him: “[h]opefully
11 this will teach you to stop snitching on staff;” “[h]opefully you [will] learn to mind your
12 business” and, “[k]eep complaining [and] next time it might be [your] head.” (See id. at
13 7.) These allegations are sufficient to state a plausible retaliation claim against Does 1 to
14 8. Hearn alleges a state actor took an adverse action against him (crushing his hand in a
15 cell door) because of his protected conduct (filing a 602 and complaining about broken
16 hearing aids and lack of access to mental health services). See Rhodes, 408 F.3d at 567–
17 68. Further, Hearn plausibly alleges the physical harm inflicted by Does 1 to 8 chilled the
18 exercise of his First Amendment rights and did not reasonably advance a legitimate
19 correctional goal. See id. at n. 11 (“[H]arm that is more than minimal will almost always
20 have a chilling effect.”).3
21 ii. RJD Warden, Frijas, and Pollard
22 Hearn also claims RJD Warden, Frijas, and Pollard “refused to give [him] the name
23 of the correctional officer[s] working the control tower, [the] floor and [who] responded to
24 the code, [and] they refused to identify staff to prevent plaintiff from filing a lawsuit
25 naming employees by name.” (See Compl. at 5.) These acts, he alleges, were in “retaliation
26
27
28
1 for filing 602 and for Plaintiff pushing to get medical treatment.” (See id.) The allegations
2 are sufficient to state a plausible retaliation claim against RJD Warden, Frijas, and Pollard
3 because they allege these defendants took some adverse action against Hearn (refused to
4 identify the correctional officers who injured him) because of his protected conduct (his
5 filing of prison grievances and staff complaints), that such action chilled Hearn’s exercise
6 of his First Amendment rights, and did not reasonably advance a legitimate correctional
7 goal. Rhodes, 408 F.3d at 567–68, n. 11; see also Shepard v. Quillen, 840 F.3d 686, 688
8 (9th Cir. 2016) (noting the 9th Circuit has “long recognized that a correctional officer may
9 not retaliate against a prisoner for exercising his First Amendment right to report staff
10 misconduct.”).
11 III. Leave to Amend
12 While the Court has dismissed some of Plaintiff’s claims, it must also grant Plaintiff
13 leave to amend them–if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir.
14 2015) (“A district court should not dismiss a pro se complaint without leave to amend
15 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the
16 deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar v.
17 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)).
18 IV. Conclusion and Order
19 Based on the foregoing, the Court:
20 1) GRANTS Plaintiff’s Motion to Proceed in forma pauperis pursuant to 28
21 U.S.C. § 1915(a).
22 2) DIRECTS the Secretary of the CDCR, or their designee, to collect from
23 Plaintiff’s trust account the initial filing fee assessed by this Order, if those funds exist at
24 the time this Order is executed, and thereafter to garnish the remainder of the $350 filing
25 fee owed in this case by assessing monthly payments from his account in an amount equal
26 to twenty percent (20%) of the preceding month’s income and forwarding those payments
27 to the Clerk of the Court each time the amount in Plaintiff’s account exceeds $10 pursuant
28 to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY
1 THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
2 3) DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen
3 Allison, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.
4 4) DISMISSES Plaintiff’s Eighth Amendment claim against Defendants RJD
5 Warden, Frijas, and Pollard sua sponte for failing to state a claim upon which relief may
6 be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1).
7 6) GRANTS Plaintiff forty-five (45) days leave from the date of the electronic
8 docketing of this Order in which to either: (1) file a Notice of Intent to Proceed with his
9 Eighth Amendment claim against Defendants Does 1 to 8 and his First Amendment
10 retaliation claim against RJD Warden, Frijas, Pollard, and Does 1 to 8 only; or (2) file an
11 Amended Complaint correcting all the deficiencies of pleading identified by the Court in
12 this Order.
13 If Plaintiff chooses to proceed as to his Eighth Amendment claim against Defendants
14 Does 1 to 8 and his First Amendment retaliation claim against RJD Warden, Frijas, Pollard,
15 and Does 1 to 8 only, the Court will issue an Order directing the U.S. Marshal to effect
16 service of his Complaint on Defendants RJD Warden, Frijas, and Pollard. Plaintiff may
17 then seek to pursue appropriate discovery to identify the unknown Does. See Wakefield v.
18 Thomas, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie, 629 F.2d at 642).
19 If Plaintiff chooses to file an amended pleading correcting the deficiencies outlined
20 in this Order, his Amended Complaint must be complete in itself without reference to his
21 original pleading. Defendants not named and any claims not re-alleged in the Amended
22 Complaint will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc.,
23 896 F.2d at 1546 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa
24 Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend
25 which are not re-alleged in an amended pleading may be “considered waived if not
26 repled.”). Plaintiff’s Amended Complaint must be captioned as his “First Amended
27 Complaint,” contain S.D. Cal. Civil Case No. 22-cv-00255-TWR-AGS in its caption, and
28 comply both with FED. R. CIV. P. 8 and with S.D. CAL. CIVLR 8.2.a.
l The Court DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy
2 || of its form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for Plaintiffs use and
3 || to assist him in amending should he choose to do so.
4 IT IS SO ORDERED.
5 ||Dated: June 13, 2022 —
6 [ odd (2 re
7 Honorable Todd W. Robinson
United States District Judge
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