“Personal jurisdiction, too, 18 is ‘an essential element of the jurisdiction of a district . . . court,’ without which the court 19 is ‘powerless to proceed to an adjudication.’”
How later courts described this case
- “Personal jurisdiction, too, 18 is ‘an essential element of the jurisdiction of a district . . . court,’ without which the court 19 is ‘powerless to proceed to an adjudication.’”
- “If a plaintiff does not take advantage of the opportunity to fix his complaint, a district court may convert the dismissal of the complaint into dismissal of the entire 28 ! action.’’
- noting that claims dismissed with leave to amend which are not re-alleged in an g amended pleading may be “considered waived if not repled.”
- parole officers are entitled to absolute 13 immunity against claims for damages arising from imposition of parole conditions
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
9
10 CARL ETHRIDGE, Case No.: 23-CV-763-GPC-WVG
11 Plaintiff,
ORDER
12 v.
1) GRANTING PLAINTIFF’S
13 H. PERALES, parole supervisor; SEAN
MOTION TO PROCEED IN FORMA
MASTERSON, parole agent; and Dr.
14 PAUPERIS;
KINGSTON, HOPE program supervisor,
15
Defendants. 2) SUA SPONTE DISMISSING
16 COMPLAINT FOR FAILURE TO
STATE A CLAIM AND FOR
17
SEEKING MONETARY DAMAGES
18 AGAINST DEFENDANTS WHO ARE
IMMUNE;
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20 3) DENYING REQUEST FOR
APPOINTMENT OF COUNSEL;
21
AND
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4) DENYING MOTION FOR
23
TEMPORARY RESTRAINING
24 ORDER
25
[Dkt. Nos. 2, 3, 4.]
26
27 On April 26, 2023, Plaintiff Carl Ethridge (“Plaintiff”) proceeding pro se, filed a
28 complaint against Defendants H. Perale, parole supervisor; Sean Masterson, parole agent
1 and Dr. Kingston, Hope Program Supervisor. (Dkt. No. 1, Compl.) Plaintiff
2 concurrently filed a motion to proceed in forma pauperis, (“IFP”), a request for
3 appointment of counsel, and an “emergency” motion for temporary restraining order.
4 (Dkt. Nos. 2-4.) For the reasons set forth below, the Court GRANTS Plaintiff’s motion
5 to proceed IFP, sua sponte DISMISSES the action for failure to state a claim and seeking
6 monetary damages against immune Defendants pursuant to 28 U.S.C. § 1915(e)(2)(B),
7 and DENIES Plaintiff’s motion to appoint counsel and motion for temporary restraining
8 order.
9 A. Motion to Proceed In Forma Pauperis
10 All parties instituting any civil action, suit, or proceeding in a district court of the
11 United States, except an application for writ of habeas corpus, must pay a filing fee of
12 $402.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to
13 prepay the entire fee only if he is granted leave to proceed IFP pursuant to § 1915(a). See
14 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d
15 1176, 1177 (9th Cir. 1999). The plaintiff must submit an affidavit demonstrating his
16 inability to pay the filing fee, and the affidavit must include a complete statement of the
17 plaintiff’s assets. 28 U.S.C. § 1915(a)(1). “To satisfy the requirements of 28 U.S.C. §
18 1915, applicants must demonstrate that because of poverty, they cannot meet court costs
19 and still provide themselves, and any dependents, with the necessities of life.” Soldani v.
20 Comm'r of Soc. Sec., Case No.: 1:19-cv-00040 –JLT, 2019 WL 2160380, at *1 (E.D. Cal.
21 Jan. 31, 2019). Courts may consider the federal poverty guidelines set by the United
22 States Department of Health and Human Services as well as income in the context of
23 overall expenses and other factors, including savings and debts, in ruling on IFP
24 applications. McKinley v. Cnty. of Fresno, No. 1:21-cv-00754-NONE-SAB, 2021 WL
25
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1 Effective December 1, 2020, civil litigants must pay an additional administrative fee of $52, in
27
addition to the $350 filing fee set by statute. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of
28 Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The $52 administrative fee does not
1 3007162, at *1 (E.D. Cal. July 15, 2021).
2 Here, Plaintiff submitted a form application and declaration stating that he receives
3 $1,177.93 of social security disability benefits per month. (Dkt. No. 2 at 1-2.2) He states
4 he has $0 in his bank account, does not have any assets, does not have any debts, does not
5 support anyone, and has expenses of food, clothing and laundry of $195.003 per month.
6 (Id. at 4.) He also states that he cannot afford a place to live. (Id. at 5.) Accordingly,
7 given his limited income, the Court GRANTS Plaintiff’s motion for leave to proceed IFP.
8 B. Sua Sponte Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)
9 A complaint filed by any person proceeding IFP pursuant to 28 U.S.C. § 1915(a) is
10 subject to mandatory sua sponte review and dismissal by the Court if it is “frivolous, or
11 malicious; fails to state a claim upon which relief may be granted; or seeks monetary
12 relief against a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun
13 v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C. §
14 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27
15 (9th Cir. 2000). 28 U.S.C. § 1915(e)(2) mandates that a court reviewing a complaint filed
16 pursuant to the IFP provisions of 28 U.S.C. § 1915 rule on its own motion to dismiss
17 before directing that the complaint be served by the U.S. Marshal pursuant to Federal
18 Rule of Civil Procedure 4(c)(2). Lopez, 203 F.3d at 1127.
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)”). Federal Rule of Civil Procedure (“Rule”) 8(a) and 12(b)(6) require a
26
27 2 Page numbers are based on the CM/ECF pagination.
28
3 Plaintiff states he has $1.50 in food expense per month; however, it may appear that Plaintiff intended
1 complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief
2 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
3 quotation marks omitted). A claim is facially plausible when the factual allegations
4 permit “the court to draw the reasonable inference that the defendant is liable for the
5 misconduct alleged.” Id. And while the court “ha[s] an obligation where the petitioner is
6 pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford
7 the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th
8 Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not
9 “supply essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents
10 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
11 1. Complaint4
12 According to the complaint, Plaintiff alleges he is being subject to cruel and
13 unusual punishment by his state parole officials who have deliberately disregarded the
14 serious threat to his mental health and physical well-being. (Dkt. No. 1, Compl. at 2.) As
15 to his mental health, Plaintiff claims he is being forced to attend therapy treatment classes
16 for child molesters and rapists but he has no criminal history of such crimes. (Id.) He
17 claims that attending these treatment sessions is causing him to be severely depressed,
18 including having, at times, suicidal thoughts. (Id.) Plaintiff alleges he has complied with
19 his parole requirements such as not engaging in criminal activity or violence and has not
20 used any drugs. (Id.) However, H. Perales consistently threatens him with a parole
21 violation for Plaintiff’s occasional failure to attend the treatment classes even though the
22 sentencing court did not issue a requirement that he attend the treatment classes. (Id.)
23 Plaintiff additionally challenges the parole requirement that he register as a sex offender
24 pursuant to Penal Code section 290. (Id.) He also claims a violation of due process by
25 H. Perales and Sean Masterson for forcing him to attend treatment classes for child
26
27 4 Plaintiff does not fully articulate the nature of his claims. It appears he is pursuing a 42 U.S.C. § 1983
28 claim against parole officers based on violations of the United States Constitution but does not assert the
1 molestation and rape because it does not meet his offense and is not supported by the
2 order of the sentencing judge. (Id. at 3.)
3 Further, he summarily asserts he is being denied equal protection of the law
4 because he is unfairly being required to register even though he committed a non-sexual
5 offense of “searching a woman during a[n] armed robbery 30 years ago of which during
6 that time was not a registrable offense and in fact was a wobbler making it eligible to be
7 reduced to a misdemeanor and expunged . . . .” (Id. at 2-3.)
8 As to his physical health, Plaintiff argues that all Defendants have been
9 deliberately indifferent to his serious medical needs requiring him to attend class or work
10 even though he has a documented severe spinal nerve impingement which will require
11 surgery and he cannot safely attend class or work. (Id.) According to the concurrently
12 filed temporary restraining order, Plaintiff states he is being required to walk up a hill to
13 attend the classes and has difficulty due to his spinal condition. (Dkt. No. 4 at 2.) He
14 claims he was taken to the hospital by ambulance when was attending the class. (Dkt.
15 No. 1, Compl. at 3; Dkt. No. 4 at 2.) The complaint seeks punitive damages of $50,000.
16 (Id. at 4.)
17 2. 42 U.S.C. § 1983
18 42 U.S.C. § 1983 provides a cause of action for the “deprivation of any rights,
19 privileges, or immunities secured by the Constitution and laws” of the United States.
20 Wyatt v. Cole, 504 U.S. 158, 161 (1992). “To establish § 1983 liability, a plaintiff must
21 show both (1) deprivation of a right secured by the Constitution and laws of the United
22 States, and (2) that the deprivation was committed by a person acting under color of state
23 law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
24 Plaintiff names three defendants: H. Perales, a parole supervisor; Sean Masterson,
25 a parole agent and Dr. Kingston, Hope Program Supervisor, but does not allege that any
26 of them were acting under color of state law. (Dkt. No. 1, Compl. at 1.) While
27 Defendants H. Perales, as a parole supervisor, and Sean Masterson, as a parole agent,
28 were likely acting under color of state law, Plaintiff has not sufficiently alleged whether
1 Dr. Kingston, Hope Program Supervisor, a private individual, was acting under color of
2 state law and must be dismissed. Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003)
3 (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)) (§ 1983 action cannot be brought
4 against a private party unless “he is a willing participate in joint action with the State or
5 its agents.”).
6 3. Immunity
7 “An official derives the appropriate degree of immunity not from his or her
8 administrative designation, but by the function he or she performs.” Swift v. California,
9 384 F.3d 1184, 1188 (9th Cir. 2004) (quoting Anderson v. Boyd, 714 F.2d 906, 908 (9th
10 Cir. 1983)). A parole officer is absolutely immune from liability “for the imposition of
11 parole conditions.” Swift v. California, 384 F.3d 1184, 1189 (9th Cir. 2004); Thornton v.
12 Brown, 757 F.3d 834, 840 (9th Cir. 2014) (parole officers are entitled to absolute
13 immunity against claims for damages arising from imposition of parole conditions). The
14 imposition of parole conditions is a “quasi-judicial function[]” that is “functionally
15 comparable to tasks performed by judges,” who are entitled to absolute immunity for
16 judicial acts. Swift, 384 F.3d at 1189 (internal quotation marked omitted); In re Castillo,
17 297 F.3d 940, 948 (9th Cir. 2002) (look to “nature of function performed and not to the
18 identity of the actor performing it” to determine whether absolute immunity is available).
19 However, a parole officers’ immunity arising from their duty to supervise or enforce the
20 conditions of parole is qualified as “[a]bsolute immunity does not extend [ ] to Plaintiff's
21 claim that the parole officers enforced the conditions of his parole in an
22 unconstitutionally arbitrary or discriminatory manner.” Thornton, 757 F.3d at 840.
23 Plaintiff appears to be challenging the conditions of his parole requiring him to
24 attend the treatment classes for child molesters and rapists and requiring him to register
25 as a sex offender. To the extent that any of the defendants imposed these parole
26 conditions, they are absolutely immune from monetary damages. See Thornton, 757 F.3d
27 at 840; Seals-Brown v. Llopis, Case No. C 13-4824 PSG (PR), 2015 WL 13345330, at *2
28 (N.D. Cal. Sept. 24, 2015) (claims that parole officials violated the plaintiff’s
1 constitutional rights by imposing unconstitutional parole conditions pursuant to
2 California's Sex Offender Registration Act or Jessica's Law were barred by absolute
3 immunity). Accordingly, the Court sua sponte dismisses the claims for “cruel and
4 unusual punishment” for deliberate disregarding his mental and physical health, due
5 process and equal protection to the extent Plaintiff alleges Defendants H. Perales and
6 Sean Masterson imposed parole conditions as they are absolutely immune. See 28 U.S.C.
7 § 1915(e)(2)(B). However, to the extent Plaintiff may be alleging that Defendants H.
8 Perales and Sean Masterson are unconstitutionally enforcing the parole conditions, he has
9 not sufficiently made such an allegation, and the Court dismisses such claims for failure
10 to state a claim. See id.
11 4. Deliberate Indifference to Serious Medical Needs
12 Notwithstanding the immunity of Defendants, Plaintiff seeks to allege an Eighth
13 Amendment claim of deliberate indifference to serious medical needs using language
14 such as “cruel and unusual punishment”, “deliberately disregarded the serious threat of
15 their actions to his mental health as well as . . . existing physical disability, and
16 “deliberately indifferent to . . . serious health needs . . . of spinal nerve impingement.”
17 (Dkt. No. 1, Compl. at 2-3.)
18 The Eight Amendment mandates that prison officials must provide medical care to
19 prisoners. Estelle v. Gamble, 429 U.S. 97, 103 (1976). “[W]hen a State takes a person
20 into its custody and holds him there against his will, the Constitution imposes upon it a
21 corresponding duty to assume some responsibility for his safety and general well-being.”
22 DeShaney v. Winnebago Cnty Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989).
23 Because inmates rely on prison officials to treat their medical needs, deliberate
24 indifference may be shown by prison doctors in how they respond to the prisoner’s needs
25 or by prison guards who intentionally deny or delay access to medical care or
26 intentionally interfere with treatment once proscribed. Estelle, 429 U.S. at 104.
27 Here, Plaintiff is on parole and not incarcerated; therefore, there is no obligation by
28 the parole officers to provide adequate medical care. See Koch v. Wade, No. 15-CV-
1 3895, 2016 WL 1381793, at *2 (N.D. Cal. Apr. 5, 2016) (“[A]lthough the Supreme Court
2 has found that the Eighth Amendment requires the state to provide adequate medical care
3 to incarcerated prisoners . . . that obligation has not been extended to convicts who are
4 not in custody and therefore free to find treatment on their own.”); Woodroffe v. Lincoln
5 Cnty. Cmty. Just., No. 6:21-CV-01053-IM, 2021 WL 5316984, at *6 (D. Or. Nov. 10,
6 2021), appeal dismissed, No. 22-35283, 2022 WL 2527007 (9th Cir. May 16, 2022)
7 (quoting Wallace v. Jones, No. 2:12-cv-02018 TLN DAD P., 2013 WL 2190174, at *3
8 (May 20, 2013) (“there is no duty for parole officers to ensure that parolees obtain public
9 assistance, housing or medical care.”)); see also Cady v. Becarri, No. CV 12-0084-M-
10 DLC-JCL, 2012 WL 6048729, at *3 (D. Mont. Aug. 23, 2012) (rejecting the plaintiff's
11 attempt to impose liability on the defendant for failing to fulfill her duties as a parole
12 officer because parole officers do not have an affirmative duty to provide housing, mental
13 health services, or medical care) (citing DeShaney v. Winnebago Cnty. Dep't of Soc.
14 Servs., 489 U.S. 189 (1989)). Plaintiff has failed to plausibly allege that Defendant H.
15 Perales and Sean Masterson were deliberately indifferent to Plaintiff’s serious medical
16 needs in violation of the Eighth Amendment.
17 Accordingly, the Court, additionally, sua sponte dismisses the claim for deliberate
18 indifference to Plaintiff’s serious medical needs for failing to state a claim. See 28
19 U.S.C. § 1915(e)(2)(B). To the extent Plaintiff may also be asserting due process and
20 equal protection violations, he has failed to provide a “short and plain statement of the
21 claim[s]” showing he is entitled to relief. See Fed. R. Civ. P. 8(a)(2).
22 C. Motion for Appointment of Counsel
23 The Constitution provides no right to appointment of counsel in a civil case unless
24 an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v.
25 Dept. of Social Servs., 452 U.S. 18, 25 (1981). Under 28 U.S.C. § 1915(e)(1), however,
26 district courts are granted discretion to appoint counsel for indigent persons under
27 “exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
28 Here, because the Court SUA SPONTE dismisses Plaintiff’s complaint, the Court
1 DENIES Plaintiff’s request for appointment counsel as moot.
2 D. Temporary Restraining Order
3 Plaintiff also filed an “emergency” temporary restraining order enjoining
4 Defendants from requiring him to attend the treatment class due to his physical
5 “disability” because he has to walk up a hill to attend the class and also because he has no
6 criminal history related to child molestation and rape. (Dkt. No. 4 at 1-2.)
7 Procedurally, a federal district court may issue emergency injunctive relief only if
8 it has personal jurisdiction over the parties and subject matter jurisdiction over the
9 lawsuit. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350
10 (1999) (noting that one “becomes a party officially, and is required to take action in that
11 capacity, only upon service of summons or other authority-asserting measure stating the
12 time within which the party served must appear to defend.”). The court may not attempt
13 to determine the rights of persons not before it. See Hitchman Coal & Coke Co. v.
14 Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir.
15 1983). A district court has no authority to grant relief in the form of a temporary
16 restraining order or permanent injunction where it has no jurisdiction over the parties.
17 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (“Personal jurisdiction, too,
18 is ‘an essential element of the jurisdiction of a district . . . court,’ without which the court
19 is ‘powerless to proceed to an adjudication.’”).
20 Plaintiff’s complaint has not survived the initial sua sponte screening required by
21 28 U.S.C. § 1915(e)(2), the United States Marshal has not been directed to effect service
22 on his behalf, and the named Defendants have no actual notice of either of Plaintiff’s
23 complaint or his motion for temporary restraining order. Therefore, the Court cannot
24 grant Plaintiff injunctive relief because it has no personal jurisdiction over any Defendant
25 at this time. See Fed. R. Civ. P. 65(a)(1), (d)(2); Murphy Bros., Inc., 526 U.S. at 350.
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27 5 The Court notes that Plaintiff filed a form request for appointment of counsel without providing any
28 information explaining why he needs counsel. (See Dkt. No. 3.) In the event Plaintiff files an amended
1 Substantively, Rule 65 provides that the Court may issue a temporary restraining
2 order where “specific facts in an affidavit or a verified complaint clearly show that
3 immediate and irreparable injury, loss, or damage will result to the movant before the
4 adverse party can be heard in opposition.” Fed. R. Civ. P. 65. A movant must
5 demonstrate that: “(1) it is likely to succeed on the merits, (2) it is likely to suffer
6 irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in its
7 favor, and (4) an injunction is in the public interest.” Goldman, Sachs & Co. v. City of
8 Reno, 747 F.3d 733, 738 (9th Cir. 2014) (citing Winter v. Nat. Res. Def. Council, Inc.,
9 555 U.S. 7, 20 (2008)). Injunctive relief is an “extraordinary remedy that may only be
10 awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555
11 U.S. at 22.
12 Here, because Plaintiff has failed to state a claim, he is unable to demonstrate a
13 likelihood of success on the merits. Thus, the Court DENIES the motion for temporary
14 restraining order. See Thomas v. Chu, No. 3:20-cv-00245-GPC-BGS, 2020 WL
15 5408944, at *10 (S.D. Cal. Sept. 9, 2020) (noting that, having dismissed the complaint
16 pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), the plaintiff had “necessarily failed
17 to show, for purposes of justifying preliminary injunctive relief, any likelihood of success
18 on the merits of his claims” (citing cases).)
19 Conclusion
20
Based on the above, the Court GRANTS Plaintiff’s motion to proceed in forma
21 pauperis, sua sponte DISMISSES the complaint for failure to state a claim upon which
22 relief can be granted and for seeking monetary damages against immune defendants, and
23 DENIES Plaintiff’s motion for appointment of counsel and motion for temporary
24 restraining order. In the event Plaintiff seeks to file an amended complaint, he must do so
25 no later than June 1, 2023. If Plaintiff fails to timely amend, the Court will enter a final
26 Order dismissing the entire action. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir.
27 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a
district court may convert the dismissal of the complaint into dismissal of the entire
28
! action.’’).
2 The amended complaint must be complete by itself without reference to her
3 || previous pleading. Defendants not named and any claim not re-alleged in the Amended
4 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios,
5 ||Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended
6 || pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.
7 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an
g amended pleading may be “considered waived if not repled.”).
9 IT IS SO ORDERED.
19 |{Dated: May 5, 2023 (2. sake (0
Hon. Gonzalo P. Curtel
United States District Judge
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