Claudio v. PIA Industries Inc.

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 ROBERT CLAUDIO, Case No.: 3:23-cv-01965-JAH-VET

CDCR #AU-1732,

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ORDER GRANTING MOTION TO

Plaintiff,

13 PROCEED IN FORMA PAUPERIS

vs. AND DISMISSING COMPLAINT

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FOR FAILING TO STATE A CLAIM

15 PURSUANT TO

PIA INDUSTRIES, INC.; CDCR; 28 U.S.C. § 1915(e)(2)(B)(ii) AND

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BEIRBAUM; HOGAN; OJEDA; 28 U.S.C. § 1915A(b)(1)

17 FLORES; EKWOST; HILL; PALMER;

DOES 1‒50, [ECF No. 2]

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Defendants.

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22 I. BACKGROUND

23 Plaintiff Robert Claudio (“Plaintiff” or “Claudio”), proceeding pro se while

24 incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, has filed

25 a civil rights complaint pursuant to 42 U.S.C. §§ 1983 and 1985. (See “Compl.,” ECF

26 No. 1 at 6.) Claudio alleges the California Department of Corrections and Rehabilitation

27 (“CDCR”), the Prison Industry Authority (“PIA Industries”), two RJD Wardens, several

28 PIA employees, and dozens of unidentified Does discriminated against and conspired to

1 remove him from job assignment based on his gender identity. (Id. at 6‒8.) Claudio

2 requests leave to proceed in forma pauperis (“IFP”). (See ECF No. 2.)

3 For the following reasons, the Court grants Claudio’s Motion to Proceed IFP, but

4 dismisses his Complaint sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)

5 because it fails to state a plausible claim for relief against any named Defendant.

6 II. PLAINTIFF’S IFP MOTION

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

8 United States, except an application for writ of habeas corpus, must pay a filing fee.2 See

9 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire fee at the

10 time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant to 28

11 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); cf.

12 Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] IFP

13 application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the

14 fee[s] [a]re paid.”).

15 “While the previous version of the IFP statute granted courts the authority to waive

16 fees for any person ‘unable to pay[,]’ … the PLRA [Prison Litigation Reform Act]

17 amended the IFP statute to include a carve-out for prisoners: under the current version of

18 the IFP statute, ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the

19 prisoner shall be required to pay the full amount of a filing fee.’” Hymas, 73 F.4th at 767

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1 Claudio identifies as an LGBTQ candidate and refers to himself using male pronouns.

23 See Compl. at 7.

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2 In addition to the $350 statutory fee, civil litigants filing suit before December 1, 2023

25 were required to pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a)

(Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec.

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1, 2020). The administrative portion of the fee increased to $55 on December 1, 2023;

27 however, the administrative portion of the fee does not apply to persons granted leave to

proceed IFP. See https://www.casd.uscourts.gov/_assets/pdf/attorney/CASD%20FEE%20

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1 (quoting 28 U.S.C. § 1915(b)(1)). Section 1915(b) “provides a structured timeline for

2 collecting this fee.” Id. (citing 28 U.S.C. § 1915(b)(1)-(2)).

3 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of

4 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account

5 statement (or institutional equivalent) for … the 6-month period immediately preceding

6 the filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d

7 1113, 1119 (9th Cir. 2005). Using this financial information, the court “shall assess and

8 when funds exist, collect, … an initial partial filing fee,” which is “calculated based on

9 ‘the average monthly deposits to the prisoner’s account’ or ‘the average monthly balance

10 in the prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in

11 ‘monthly payments of 20 percent of the preceding month’s income credited to the

12 prisoner’s account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)).

13 Thus, while prisoners may qualify to proceed IFP without having to pay the statutory

14 filing fee in one lump sum, they nevertheless remain obligated to pay the full amount due

15 in monthly payments. See Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C.

16 § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

17 Here, Claudio’s IFP application complies with both 28 U.S.C. § 1915(a)(1) and

18 (2). In support of his Motion, he has submitted a copy of his CDCR Inmate Trust

19 Account Statement Report, together with a certificate issued by an RJD Accounting

20 Officer. (See ECF Nos. 2, 3 at 1‒4); see also S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at

21 1119. These documents show Claudio maintained an average monthly balance of

22 $362.60 in his prison trust account, and had $194.69 in average monthly deposits credited

23 to his account over the 6-month period immediately preceding the filing of his

24 Complaint. At the time of filing, however, Claudio’s available balance was only $1.35.

25 (See ECF No. 3 at 1, 3.)

26 Based on this accounting, the Court GRANTS Claudio’s Motion to Proceed IFP

27 (ECF No. 2) and assesses an initial partial filing fee of $65.60 pursuant to 28 U.S.C.

28 § 1915(b)(1). However, this initial fee need be collected only if sufficient funds are

1 available in Claudio’s account at the time this Order is executed. See 28 U.S.C.

2 § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a

3 civil action or appealing a civil action or criminal judgment for the reason that the

4 prisoner has no assets and no means by which to pay the initial partial filing fee.”);

5 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve”

6 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to

7 the lack of funds available to him when payment is ordered.”). The CDCR must

8 thereafter collect the full balance of the $350 total fee owed in this case and forward

9 payments to the Clerk of the Court as provided by 28 U.S.C. § 1915(b)(2).

10 III. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)

11 A. Standard of Review

12 Because Claudio is a prisoner proceeding IFP, his Complaint is subject to a

13 preliminary screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). These statutes

14 require the Court to sua sponte dismiss a prisoner’s IFP complaint, or any portion of it,

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

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

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

18 2010) (discussing 28 U.S.C. § 1915A(b)).

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) (Section 1915A screening “incorporates the familiar standard applied in the

24 contest of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”).

25 Federal Rules of Civil Procedure 8 and 12(b)(6) together require a complaint to “contain

26 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

27 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.

28 Twombly, 550 U.S. 544, 570 (2007)). Detailed factual allegations are not required, but

1 “[t]hreadbare recitals of the elements of a cause of action supported by mere conclusory

2 statements, do not suffice.” Id. “The “mere possibility of misconduct” or unadorned,

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

4 plausibility standard. Id. at 678–79. Still, the court has “an obligation where the

5 petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally

6 and to afford the petitioner the benefit of any doubt.” Johnson v. Ryan, 55 F.4th 1167,

7 1179 (9th Cir. 2022) (citation omitted).

8 “To recover damages under 42 U.S.C. § 1983, a plaintiff must prove that the

9 defendant deprived him of a ‘constitutional right while acting under color of state law.’”

10 Herrera v. Los Angeles Unified Sch. Dist., 18 F.4th 1156, 1158 (9th Cir. 2021) (quoting

11 Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090, 1094 (9th Cir. 2006)).

12 B. Plaintiff’s Factual Allegations

13 During the months of February and March 2023, Claudio alleges CDCR, PIA

14 Industries, Inc., RJD Warden Hill, Associate Warden Palmer, and PIA employees

15 Bierbaum, Hogan, Ojeda, Flores and Ekwost all conspired to discriminate against him

16 based on his gender identity.3 (See Compl. at 1, 6.) Specifically, Claudio claims to

17 identify as a member of the LGBTQ community, and to have been employed for two

18 years as an inmate floor worker with PIA Industries, which contracts with the CDCR to

19 manufacture shoes at RJD. (Id. at 6‒7.) Claudio alleges when he recently applied and

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3 Claudio also refers to unidentified Does 1‒50, but he includes no factual allegations

23 whatsoever as to who those persons may be or what they may or may not have done. “A

plaintiff may refer to unknown defendants as Defendant John Doe 1, John Doe 2, John Doe

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3, and so on, but he must allege specific facts showing how each particular doe defendant

25 violated his rights.” Cuda v. Employees/Contractors/Agents at or OCCC, 2019 WL

2062945, at *3–4 (D. Haw. May 9, 2019); see also Keavney v. County of San Diego, No.

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3:19-cv-01947-AJB-BGS, 2020 WL 4192286, at *4‒5 (S.D. Cal. 2020) (noting that while

27 Doe pleading is neither authorized nor specifically barred by the Federal Rules, “a

complaint using fictitious names for unidentified defendants still requires ‘specific facts

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1 was promoted to hold one of four inmate clerk positions, “all PIA employees” were

2 aware he was an LGBTQ candidate. (Id. at 7.) All four clerks were assigned to share a

3 community desk located near the center of the plant. (Id.)

4 Sometime in February 2023, Claudio alleges “PIA senior staff were overheard by

5 inmates [stating] they wanted to “Get rid of the faggot” who worked for them. (Id.)

6 Claudio alleges these staff members indicated they had no objection to him working in

7 another part of the plant, but did not want him to work as “their clerk.” (Id.) Claudio

8 further alleges these “prejudicial defendants” held a meeting during which they

9 “schemed, conspired, [and] made plans to set [him] up and fire him because he was an

10 LGBTQ class member.” (Id.)

11 Specifically, Claudio contends that on or about March 1, 2023, Defendants

12 “arranged [and] coordinated to plant PIA exams in[] the community shared desk.” (Id.)

13 On March 2, 2023, Defendant Bierbaum conducted a “fictional search,” found the exams

14 in one of the drawers, and “blam[ed] [Claudio] for stealing [them].” (Id. at 8.) Claudio

15 was issued a “serious RVR (Rules Violation Report)” accusing him of theft on March 3,

16 2023. (Id.) He alleges photos of the exams were used to support his disciplinary

17 conviction, but camera footage which would have verified the true culprit was ignored.

18 (Id.) As a result, Claudio was fired from his job. (Id. at 9.)

19 Claudio claims all Defendants unlawfully conspired and discriminated against him

20 in violation of the Fourteenth Amendment based on his gender identity and LGBTQ class

21 membership. (Id. at 3, 6, 9.) He seeks injunctive relief preventing future acts of

22 retaliation, $65,000 in compensatory damages from each individually named Defendant,

23 and $1.5 million in punitive damages. (Id. at 5.)

24 C. Discussion

25 1. Eleventh Amendment – Defendants CDCR & PIA Industries

26 The Court first finds that to the extent Claudio seeks to hold either the CDCR or

27 PIA Industries liable under section 1983, his claims are barred by the Eleventh

28 Amendment. “The Eleventh Amendment bars suits for money damages in federal court

1 against a state, its agencies, and state officials acting in their official capacities.” Aholelei

2 v. Dep’t of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Indeed, the Eleventh

3 Amendment prohibits federal courts from hearing a section 1983 lawsuit in which

4 damages or injunctive relief is sought against a state, its agencies (such as CDCR) or

5 individual prisons, absent “a waiver by the state or a valid congressional override.”

6 Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). “The Eleventh Amendment

7 bars suits which seek either damages or injunctive relief against a state, ‘an arm of the

8 state,’ its instrumentalities, or its agencies.” See Fireman’s Fund Ins. Co. v. City of Lodi,

9 Cal., 302 F.3d 928, 957 n.28 (9th Cir. 2002) (internal quotation and citations omitted).

10 “The State of California has not waived its Eleventh Amendment immunity with respect

11 to claims brought under § 1983 in federal court.” Dittman, 191 F.3d at 1025–26 (citing

12 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)); see also Brown v. Cal.

13 Dep’t. of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (finding California Department of

14 Corrections and California Board of Prison Terms entitled to Eleventh Amendment

15 immunity).

16 Here, Claudio includes both the CDCR and PIA Industries as Defendants but

17 because both are arms or sub-agencies of the State of California, both are immune. See

18 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (holding that

19 Eleventh Amendment immunity extends to state agencies); Hale v. Arizona, 993 F.2d

20 1387, 1398‒99 (9th Cir. 1993) (holding that a state department of corrections is an arm of

21 the state, and thus, not a “person” within the meaning of § 1983); see also Dragasits v.

22 California, No. 3:16-cv-01998-BEN-JLB, 2016 WL 680947, at *3 (S.D. Cal. Nov. 15,

23 2016) (“The State of California’s Department of Corrections and Rehabilitation and any

24 state prison, correctional agency, sub-division, or department under its jurisdiction, are

25 not ‘persons’ subject to suit under § 1983). The PIA is also a sub-agency within the

26 CDCR that among other things, operates work programs for prisoners. See Cal. Penal

27 Code §§ 2800–2801; Burleson v. California, 83 F.3d 311, 312–13 (9th Cir. 1996)

28 (describing origins of PIA); Jefferson v. Hollingsworth, No. 3:17-CV-1099-BEN-BGS,

1 2017 WL 3396516, at *3 (S.D. Cal. Aug. 4, 2017). The PIA is by statute a part of the

2 CDCR. Burleson, 83 F.3d at 312–13 (citing Cal. Penal Code § 2800). The PIA’s status

3 as a part of the California correctional system brings it within the ambit of “prison-

4 structured programs.” Id. at 314.

5 For these reasons, Claudio’s suit may not proceed against either the CDCR or PIA

6 Industries. See e.g, Palacios v. Lewis, No. 23-CV-871 TWR (DEB), 2023 WL 8628909,

7 at *2 (S.D. Cal. Dec. 13, 2023) (dismissing pro se prisoner’s claims as barred by the

8 Eleventh Amendment pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) and 1915A(b)(ii);

9 Hansen v. CAL/PIA, No. 1:09-CV-01651, 2010 WL 4723079, at *4 (E.D. Cal. Nov. 15,

10 2010) (dismissing prisoner’s claims against PIA Industries sua sponte as barred by the

11 Eleventh Amendment pursuant to 28 U.S.C. § 1915A).

12 2. Respondeat Superior – Wardens Hill & Palmer

13 The Court also finds Claudio’s Complaint fails to state any plausible claim for

14 relief against either RJD Warden Hill or Associate Warden Palmer. There is no

15 respondeat superior liability under § 1983. Jones v. Williams, 297 F.3d 930, 934 (9th

16 Cir. 2002). Specifically, liability may not be imposed on supervisory personnel for the

17 actions or omissions of their subordinates. Iqbal, 556 U.S. at 676–77. “A supervisor

18 may be liable only if (1) he or she is personally involved in the constitutional deprivation,

19 or (2) there is a sufficient causal connection between the supervisor’s wrongful conduct

20 and the constitutional violation.” Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir.

21 2013) (citation and quotation marks omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th

22 Cir. 1989) (supervisors may be held liable only if they “participated in or directed the

23 violations, or knew of the violations and failed to act to prevent them.”).

24 As to Warden Hill, Claudio merely concludes he “is responsible for all actions

25 conducted on institutional grounds” or that “occur on his facility.” (See Compl. at 6, 9.)

26 With respect to Associate Warden Palmer, whom Claudio includes only in the caption

27 and in a paragraph heading listing all Defendants, Claudio makes no factual allegations

28 whatsoever. (See id. at 1, 6.) Nowhere in the body of his pleading does Claudio set forth

1 any specific facts to plausibly suggest either Hill or Palmer participated in any conspiracy

2 or directed any act of discrimination against him. See Taylor, 880 F.3d at 1045. Instead,

3 it appears Claudio includes these parties based only on the positions they hold at RJD and

4 not on anything that either of them did or failed to do. “Because vicarious liability is

5 inapplicable to . . . § 1983 suits, [Claudio] must plead that each Governmental-official

6 defendant, through the official’s own individual actions, has violated the Constitution.”

7 Iqbal, 556 U.S. at 676. He has not. Therefore, Claudio fails to state a plausible claim for

8 relief against either Defendants Hill or Palmer. See 28 U.S.C. §§ 1915(e)(2)(B)(ii),

9 1915A(b)(1); see also Lopez, 203 F.3d at 1126–27.

10 3. Group Pleading / Remaining PIA Employees

11 The Court further finds that to the extent Claudio seeks to hold the remaining

12 named Defendants—Bierbaum, Hogan, Ojeda, Flores, and Ekwost—liable for conspiring

13 to discriminate against him based on his gender identity in violation of the Fourteenth

14 Amendment, (see Compl. at 3, 6), he fails to allege facts sufficient to describe what each

15 of them did to cause him injury. See Lacey v. Maricopa Cnty., 693 F.3d 896, 915 (9th

16 Cir. 2012) (noting that “[a] person ‘subjects’ another to the deprivation of a constitutional

17 right, within the meaning of section 1983, if he does an affirmative act, participates in

18 another’s affirmative acts, or omits to perform an act which he is legally required to do

19 that causes the deprivation of which complaint is made.”) (quoting 42 U.S.C. § 1983).

20 In the caption and list of parties included in his form Complaint, Claudio identifies

21 Bierbaum, Hogan, Ojeda, Flores, and Ekwost as individual Defendants. (See Compl. at

22 1‒2, 6.) But in the attached pages where he explains the factual basis and gives

23 background for his conspiracy and discrimination causes of action, Claudio merely lumps

24 these persons together in differently labeled groups. (See Compl. at 2, cf. Compl, at 6‒7

25 (referring to “agents,” “staff,” “government actors,” “PIA employees” and “prejudicial

26 defendants.”)). For example, Claudio alleges “all PIA employees” were aware of his

27 gender identity, that “PIA senior staff” were overheard using offensive discriminatory

28 epithets in February 2023 after he was promoted to one of four inmate clerk positions,

1 and that the “prejudicial defendants . . . schemed, conspired, [and] made plans to set

2 [him] up and fire him.” (Id. at 7.) While he points to Bierbaum as “facilitat[ing] the

3 fictional search” of the community desk where stolen exams were found on March 2,

4 2023, nowhere does Claudio identify Bierbaum, Hogan, Ojeda, Flores or Ekwost as the

5 members of the “PIA senior staff” other inmates overheard referring to him as the

6 “faggot” they “wanted to get rid of.” (Id. at 7, 8.) Nor does Claudio specify which of

7 these persons, if any, comprised the group of “prejudicial defendants,” PIA “agents,”

8 “staff,” or “employees” he claims later met to hatch a plot and plant evidence against

9 him. (Id. at 7.)

10 Claims asserted by pro se prisoners, “however inartfully pleaded,” are held “to less

11 stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404

12 U.S. 519, 520 (1972). However, “a liberal interpretation of a civil rights complaint may

13 not supply essential elements of the claim that were not initially pled.” Bruns v. Nat’l

14 Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (citation omitted). “[A]

15 complaint which ‘lumps together . . . multiple defendants in one broad allegation fails to

16 satisfy [the] notice requirements of Rule 8(a)(2).’” Adobe Sys. v. Blue Source Grp., Inc.,

17 125 F. Supp. 3d 945, 964 (N.D. Cal. 2015) (quoting Gen-Probe, Inc. v. Amoco Corp., 926

18 F. Supp. 948, 961 (S.D. Cal. 1996)).

19 Here, regardless of the constitutional or statutory bases asserted for either

20 Claudio’s purported conspiracy or Fourteenth Amendment discrimination causes of

21 action, the Court finds he has failed to plead a plausible claim for relief against

22 Defendants Bierbaum, Hogan, Ojeda, Flores, or Ekwost. This is because “each

23 Government official . . . is only liable for his or her own misconduct,” Iqbal, 556 U.S. at

24 677, and Claudio’s Complaint fails to include sufficient factual content describing how

25 each of these parties individually, by name, personally acted, or failed to act, to cause a

26 violation of his rights. “[A] plaintiff c[an] not hold an officer liable because of his

27 membership in a group without a showing of individual participation in the unlawful

28 conduct.” Jones, 297 F.3d at 935.

1 To properly state any claim for relief under section 1983, the plaintiff must plead

2 facts showing how each of the named defendants “personal[ly] participat[ed] in the

3 alleged rights deprivation.” Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir.

4 2009). In short, Claudio may not attribute liability to a group of defendants as he has, but

5 instead must “set forth specific facts as to each individual defendant’s” deprivation of his

6 rights. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); see also Taylor, 880 F.2d at

7 1045.

8 For all these reasons, the Court finds Claudio’s entire Complaint fails to state a

9 claim upon which relief can be granted and must be dismissed sua sponte pursuant to 28

10 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

11 4. Purported Cause(s) of Action

12 Finally, the Court notes Claudio cites the Fourteenth Amendment as the

13 constitutional basis for his suit, but in his form Complaint refers to several attached pages

14 which combine into “Cause of Action One” what appear to be distinct claims for relief

15 alleging “discrimination against gender identity” and “conspiracy to discriminate against

16 LGBTQ class member” pursuant to 42 U.S.C. §§ 1983 and 1985. (See Compl. at 3, 6.)

17 Because his Complaint as currently pleaded fails to adequately allege any named

18 Defendant may be held personally liable for violating any of his constitutional rights as a

19 overriding preliminary matter, the Court need not also determine whether Claudio’s

20 conspiracy and discrimination claims, as currently conflated, would otherwise suffice to

21 survive initial screening pursuant to 28 U.S.C. §§ 1915(e)(2) or 1915A.

22 Claudio is hereby cautioned, however, that if he wishes to assert more than one

23 cause of action, say for example, discrimination based on his gender identity in violation

24 of the Fourteenth Amendment’s Equal Protection Clause, and another related claim

25 alleging a conspiracy to violate his constitutional rights under either 42 U.S.C. § 1983 or

26 42 U.S.C. § 1985(3), he must set out those bases for relief and describe the involvement

27 of each Defendant he seeks to hold liable separately in his Amended Complaint, as the

28 pleading requirements for unlawful discrimination and conspiracy differ.

1 “To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection

2 Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with

3 an intent or purpose to discriminate against the plaintiff based upon membership in a

4 protected class.” Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (citations

5 omitted).

6 “A civil conspiracy is a combination of two or more persons who, by some

7 concerted action, intend to accomplish some unlawful objective for the purpose of

8 harming another which results in damage.” Lacey, 693 F.3d at 935 (internal quotation

9 omitted). To adequately allege a claim of conspiracy under section 1983, a plaintiff must

10 include facts sufficient to show both “an underlying constitutional violation,” id., and “an

11 agreement or meeting of the minds to violate constitutional rights.” Mendocino Envtl.

12 Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1301 (9th Cir. 1999) (internal quotation marks

13 omitted); see also Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999)

14 (plaintiff must “show that the conspiring parties reached a unity of purpose or a common

15 design and understanding, or a meeting of the minds in an unlawful arrangement”

16 (internal quotation marks omitted)).

17 Section 1985 also creates a civil action for damages caused by two or more persons

18 who “conspire . . . for the purpose of depriving” the injured person of “the equal

19 protection of the laws, or of equal privileges and immunities under the laws” and take or

20 cause to be taken “any act in furtherance of the object of such conspiracy.” Thornton v.

21 City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005) (quoting 42 U.S.C. § 1985(3)).

22 “The language requiring intent to deprive of equal protection . . . means that there must

23 be some racial, or perhaps otherwise class-based, invidiously discriminatory animus

24 behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); see

25 also Butler v. Elle, 281 F.3d 1014, 1028 (9th Cir. 2002) (per curiam). However, “the

26 absence of a section 1983 deprivation of rights precludes a section 1985 conspiracy claim

27 predicated on the same allegations.” Thornton, 425 F.3d at 1168 (citation omitted).

28 / / /

1 IV. CONCLUSION

2 Accordingly, for all the reasons discussed, the Court:

3 1. GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2).

4 2. ORDERS the Secretary of the CDCR, or his designee, to collect from

5 Claudio’s trust account the $65.60 initial filing fee assessed, if those funds are available

6 at the time this Order is executed, and forward whatever balance remains of the full $350

7 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding

8 month’s income to the Clerk of the Court each time the amount in Claudio’s account

9 exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2).

10 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff

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

12 via U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov.

13 4. DISMISSES Claudio’s Complaint in its entirety for failing to state a claim

14 upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

15 1915A(b)(1); and

16 5. GRANTS Claudio forty-five (45) days leave from the date of this Order in

17 which to file an Amended Complaint which cures all the deficiencies of pleading noted.

18 Claudio’s Amended Complaint must be complete by itself without reference to his

19 original Complaint. Any Defendant not named and any claim not re-alleged in his

20 Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach

21 Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n

22 amended pleading supersedes the original.”); Lacey, 693 F.3d at 928 (noting that claims

23 dismissed with leave to amend which are not re-alleged in an amended pleading may be

24 “considered waived if not repled.”).

25 If Claudio fails to file an Amended Complaint within 45 days, the Court will enter a

26 final Order dismissing this civil action based both on his failure to state a claim upon

27 which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and

28 his failure to prosecute in compliance with a court order requiring amendment. See Lira

1 || v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage

2 || of the opportunity to fix his complaint, a district court may convert the dismissal of the

3 complaint into dismissal of the entire action.”).

4 IT IS SO ORDERED.

5 || Dated: January 30, 2024

6 Hopf. John A. Houston

7 Upited States District Judge

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