Shallowhorn v. Hopper

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 ALFRED EUGENE SHALLOWHORN, Case No.: 25-cv-0222-MMA (MMP)

CDCR #P-13049,

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ORDER:

Plaintiff,

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vs. 1) GRANTING MOTION TO

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PROCEED IN FORMA PAUPERIS;

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HOPPER, et al.,

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Defendants. [Doc. No. 3]

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2) DISMISSING COMPLAINT

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PURSUANT TO 28 U.S.C. § 1915(e)(2)

19 AND 28 U.S.C. § 1915A(b)

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21 Plaintiff Alfred Eugene Shallowhorn, a state prisoner, has filed this civil rights

22 action pursuant to 42 U.S.C. § 1983. Doc. No. 1. This action was initially dismissed

23 without prejudice for failure to pay the civil filing fee or file a motion to proceed in forma

24 pauperis (“IFP”). Doc. No. 2. Plaintiff has now filed an IFP motion. Doc. No. 3.

25 I. IFP MOTION

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

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

28 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55,

1 although the administrative fee does not apply to persons granted leave to proceed IFP.

2 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee

3 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure

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

5 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A prisoner

6 seeking leave to proceed IFP must submit a “certified copy of the trust fund account

7 statement (or institutional equivalent) for . . . the 6-month period immediately preceding

8 the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113,

9 1119 (9th Cir. 2005). From the trust account statement, the Court assesses an initial

10 payment of 20% of (a) the average monthly deposits in the account for the past six

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

12 whichever is greater, unless the prisoner has insufficient assets. See 28 U.S.C.

13 § 1915(b)(1)&(4); Bruce v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP

14 must pay any remaining balance in “increments” or “installments,” regardless of whether

15 their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1)&(2); Bruce, 577 U.S. at 84.

16 In support of his IFP motion, Plaintiff has submitted a copy of his Prison

17 Certificate attested to by a trust account official. Doc. No. 3 at 6. The document shows

18 he had an average monthly balance of $0.00 and average monthly deposits of $0.00, with

19 an available balance of $0.00. Id. The Court GRANTS Plaintiff’s motion to proceed IFP

20 and assesses no initial partial filing fee. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n

21 no event shall a prisoner be prohibited from bringing a civil action or appealing a civil

22 action or criminal judgment for the reason that the prisoner has no assets and no means

23 by which to pay the initial partial filing fee.”); Taylor v. Delatoore, 281 F.3d 844, 850

24 (9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing

25 dismissal of a prisoner’s IFP case based solely on “failure to pay . . . due to the lack of

26 funds available to him when payment is ordered.”) Pursuant to 28 U.S.C. § 1915(b)(2),

27 the agency having custody of Plaintiff will forward payments to the Clerk pursuant to the

28 installment provisions of 28 U.S.C. § 1915(b)(1)&(2) until the $350 statutory fee is paid

1 in full.

2 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

3 A. Standard of Review

4 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

5 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these

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

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

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

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

10 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of § 1915A is to ensure that the

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

12 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (internal quote marks omitted).

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

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

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

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

17 Cir. 2012) (section 1915A screening “incorporates the familiar standard applied in the

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

19 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to

20 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

21 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “To establish

22 § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the

23 Constitution and laws of the United States, and (2) that the deprivation was committed by

24 a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128,

25 1138 (9th Cir. 2012).

26 B. Plaintiff’s Allegations

27 Plaintiff alleges he “has a mental health chrono to have his T.V. for his mental

28 support (as well as plaintiff’s use sports (basketball)) to relieve stress, depression, etc.

1 which is part of his mental stability process.” Doc. No. 1 at 7. On March 11, 2024, while

2 housed at Centinela State Prison in Imperial, California, Defendant Captain Hopper, who

3 approved Plaintiff’s television chrono, ordered Correctional Officer John Doe #1 to

4 remove the television from Plaintiff’s cell without authorization or legal cause. Id. at 7-8.

5 Plaintiff filed a 602-inmate grievance requesting Hopper be arrested for misdemeanor

6 theft of the television, claiming he did so in retaliation for Plaintiff’s refusal to be

7 transferred. Id. at 8-9. Hopper “tried to cover up” by contending the medical chrono

8 expired, but it has no expiration date, and Hopper “emailed medical and mental health to

9 stop helping plaintiff and leave it up to custody to deal with plaintiff.” Id. at 9.

10 Defendant Correctional Officer Carrillo took Plaintiff’s television on several

11 occasions, and although it was always returned, the incidents included Plaintiff being

12 handcuffed while correctional staff talked and pointed at him. Id. at 10. Carrillo was

13 very upset the television was returned and told staff, “what he (Carrillo) says goes

14 nothing else fucking matters.” Id. at 11. The harassment heightened when staff

15 prevented Plaintiff from transferring from Centinela A-yard to C-yard, and a conspiracy

16 arose to transfer Plaintiff out of Centinela because of “602s and civil complaints.” Id.

17 Plaintiff alleges he was ordered transferred to Calipatria State Prison for filing multiple

18 602 inmate grievances and complaints against staff and the administration, and contends

19 the transfer was expedited, showing a commitment to punish and retaliate. Id. at 11-12.

20 Hopper was on the committee which approved the transfer, along with Velez and

21 Martinez, who told Plaintiff the transfer was a collective decision. Id. at 12-13.

22 Plaintiff alleges he went on a hunger strike when Hopper took his television

23 because he refused to be transferred, and for three days and nights he walked up and

24 down in front of the program office in protest of his transfer order and the loss of his

25 television. Id. at 13-14. Hopper told staff Plaintiff was trying to manipulate the

26 administration to get his television back. Id. at 14. Plaintiff alleges that such

27 manipulation by Hopper of staff is common to cover up staff wrongdoing. Id. at 15. He

28 claims Hopper is the head of a conspiracy, joined by Defendants Correctional Officers

1 Carrillo and Castillo, Dr. Kahn, and Sergeants Estrada and Matus, as well as conspirators

2 Velez and Martinez who are not named as Defendants, “and other c/o staff,” to punish

3 Plaintiff by taking his television, transferring him out of Centinela and interfering with

4 his hunger strike. Id. at 15-16. Plaintiff alleges Defendant Warden Guzman was aware

5 of those events but refused to answer Plaintiff’s letters or speak with him. Id. at 16-17.

6 Plaintiff alleges Defendant Sergeant Estrada denied his proposal to end the hunger

7 strike because Hopper told him to do so, in violation of CDCR regulations and in

8 disregard of Plaintiff’s medical needs. Id. at 17. Estrada threatened violence to remove

9 Plaintiff from protesting in front of the program office, and lied when he said the threat

10 came from the program office. Id. at 17-18. Estrada told Plaintiff he was “getting off

11 this yard one way or another,” tried to coerce him into ending his hunger strike, reminded

12 him that the administration did not give him anything after his last hunger strike and said

13 they would not give him anything this time. Id. at 18. The watch commander, who had a

14 higher rank than Hopper, told Plaintiff he would try to get his television back, but failed

15 to do so because Estrada told the watch commander that Hopper said not to. Id. at 19.

16 Plaintiff claims that after Castillo and Velez shared his prison photograph, his

17 inmate grievances and his medical history with staff, all the Defendants and others have

18 targeted him, were told not to help him, and have looked at him in his cell and pointed at

19 him with harsh looks and stares and angry facial expressions. Id. at 19-21. Defendant

20 Dr. Khan allegedly conspired with Hopper to interfere with Plaintiff’s hunger strike to try

21 to force and manipulate Plaintiff to eat to end the hunger strike, refused to acknowledge

22 Plaintiff had changed his hunger strike to a “non-solid food hunger strike,” and refused to

23 provide him “medical drinks.” Id. at 21-22. Plaintiff received medical drinks but did not

24 drink them, yet Hopper reported that Plaintiff had. Id. at 22-23. Prison staff threw the

25 medical drinks away unused but refused to document that fact in violation of prison

26 regulations. Id. at 23-24.

27 Plaintiff alleges Defendant Castillo “has been biased and prejudiced towards

28 blacks in multiple buildings [with a] very hostile tone and threatening manner.” Id. at 24.

1 Castillo allegedly “stoked plaintiff and treated plaintiff indifferent by denying Plaintiff

2 his C-Status phone call.” Id. Castillo searched Plaintiff’s cell and “tried to set plaintiff

3 up to interfere with his hunger strike by finding open food containers” and “left bad

4 reports and counseled other staff coming on next shift to target plaintiff and not to give

5 plaintiff nothing.” Id. at 25.

6 Plaintiff claims Defendants failed to follow prison rules and regulations, denied

7 him due process, conspired to harass, steal, threaten, falsely accuse, retaliate and interfere

8 with his hunger strike, committed medical malpractice, destroyed legal documents, failed

9 to respond to his complaints, botched investigations, interfered with his right to protest by

10 hunger strike, and subjected him to cruel and unusual punishment. Id. at 2-6.

11 C. Eighth Amendment Claim

12 Plaintiff claims Defendants were deliberately indifferent to his medical needs and

13 committed medical malpractice when Hopper and Carrillo took his television which was

14 necessary to his mental wellbeing, when Hopper and Dr. Khan interfered with his hunger

15 strike, and when Castillo and Velez shared Plaintiff’s medical history with prison staff.

16 Doc. No. 1 at 5, 7-11, 17-25. “Prison officials have a duty to ensure that prisoners are

17 provided adequate shelter, food, clothing, sanitation, medical care and personal safety.”

18 Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). Plaintiff must plausibly allege:

19 (1) “the existence of a serious medical need” and (2) the prison official’s “deliberate

20 indifference” to that need. Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014).

21 Prison officials are deliberately indifferent when they “know[] of and disregard[] an

22 excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).

23 In order to establish deliberate indifference to his medical needs, Plaintiff must allege

24 “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need

25 and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

26 2006). A prison official is liable when he “knows of and disregards an excessive risk to

27 inmate health or safety; the official must both be aware of facts from which the inference

28 could be drawn that a substantial risk of serious harm exists, and he must also draw the

1 inference.” Farmer, 511 U.S. at 837.

2 Plaintiff’s allegations of a failure to provide medical care, medical malpractice

3 during his hunger strike fail, or the removal of his television, fail to allege facts plausibly

4 suggesting any Defendant was aware of an excessive risk to his health and deliberately

5 disregarded that risk, as there are no factual allegations regarding what medical needs

6 went unmet or how he was injured as a result. Id.; Jett, 439 F.3d at 1096; see also Estelle

7 v. Gamble, 429 U.S. 97, 105-06 (1976) (“Medical malpractice does not become a

8 constitutional violation merely because the victim is a prisoner.”); Iqbal, 556 U.S. at 678

9 (a complaint is subject to dismissal for failure to state a claim if it does not “contain

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

11 face,” as the “mere possibility of misconduct” falls short of the plausibility standard.)

12 The allegations of threats, stares and verbal abuse do not state a plausible claim for relief.

13 See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (“[I]t trivializes the Eighth

14 Amendment to believe a threat constitutes a constitutional wrong.”); Oltarzewski v.

15 Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (“Verbal harassment or abuse . . . is not

16 sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.”)

17 Plaintiff’s Eighth Amendment cruel and unusual punishment claim is dismissed

18 pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) for failure to state a claim. Lopez, 203

19 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

20 D. Retaliation Claim

21 Plaintiff alleges the Defendants took his television, attempted to transfer him, and

22 interfered with his hunger strike in retaliation for his refusal to accept a transfer and for

23 filing inmate grievances and civil complaints. Doc. No. 1 at 2, 8-9, 12. “Within the

24 prison context, a viable claim of First Amendment retaliation entails five basic elements:

25 (1) An assertion that a state actor took some adverse action against an inmate (2) because

26 of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

27 exercise of his First Amendment rights, and (5) the action did not reasonably advance a

28 legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).

1 The adverse action need not be an independent constitutional violation. Gomez v.

2 Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (“[A] retaliation claim may assert an injury

3 no more tangible than a chilling effect on First Amendment rights.”) Plaintiff must allege

4 a causal connection between an adverse action and protected conduct. Watison, 668 F.3d

5 at 1114.

6 Plaintiff’s retaliation claim lacks factual allegations plausibly indicating that any

7 person took any action because of Plaintiff’s protected conduct. Rather, Plaintiff merely

8 alleges his television was taken just after he refused the transfer. Doc. No. 1 at 8-9.

9 Although the timing of a defendant’s actions may “be considered as circumstantial

10 evidence of retaliatory intent,” timing alone is generally not enough to support an

11 inference of retaliatory intent. Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995)

12 (concluding that, in the absence of factual allegations to the contrary, it would be “sheer

13 speculation” to assume that prison officials retaliated on the basis of an inmate’s First

14 Amendment activity); see also Iqbal, 556 U.S. at 678 (the “mere possibility of

15 misconduct” falls short of meeting the plausibility standard). Absent factual, rather than

16 conclusory, allegations plausibly alleging a causal connection between adverse actions

17 and Plaintiff’s protected conduct, the Complaint fails to state a retaliation claim.

18 Watison, 668 F.3d at 1114; Rhodes, 408 F.3d at 568.

19 Plaintiff’s retaliation claim is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) and

20 1915A(b) for failure to state a claim. Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at

21 1004.

22 E. Conspiracy Claim

23 Plaintiff alleges that Defendant Hopper is the head of a conspiracy joined by

24 Defendants Carrillo, Castillo, Dr. Kahn, Estrada, Matus, as well as Velez and Martinez

25 who are not named as Defendants, “and other c/o staff,” to punish Plaintiff by taking his

26 television, transferring him out of Centinela and interfering with his hunger strike. Doc.

27 No. 1 at 2-3, 11, 15-24. To state a conspiracy claim, Plaintiff “must show ‘an agreement

28 or ‘meeting of the minds’ to violate constitutional rights.” Franklin v. Fox, 312 F.3d 423,

1 441 (9th Cir. 2002) (citations omitted). The allegations of conspiracy in the Complaint

2 here fail as entirely conclusory, as there are no factual allegations plausibly supporting a

3 finding that any Defendant agreed to violate his federal constitutional rights. See

4 Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989) (conclusory

5 allegations of conspiracy did not support a § 1983 claim); Karim-Panahi v. Los Angeles

6 Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988) (“A mere allegation of conspiracy

7 without factual specificity is insufficient.”)

8 The conspiracy claim is dismissed under 28 U.S.C. §§ 1915(e)(2) and 1915A(b)

9 for failure to state a claim. Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

10 F. Due Process Claim

11 Plaintiff alleges his federal due process rights were violated when: (1) his

12 television was stolen, (2) his transfer order was expedited in violation of prison rules and

13 regulations, and (3) his grievances and complaints were not responded to and the

14 investigation into his complaints was botched. Doc. No. 1 at 6-11. When a state

15 provides an adequate post-deprivation remedy for the taking of property, through a state

16 tort action for example, the existence of that remedy satisfies the requirements of due

17 process. Zinermon v. Burch, 494 U.S. 113, 128 (1990). The Ninth Circuit has

18 recognized that California law provides such a remedy. See Barrett v. Centoni, 31 F.3d

19 813, 816-17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810-895). Thus, Plaintiff’s claim

20 that Defendants deprived him of his television in violation of federal due process fails to

21 state a claim upon which § 1983 relief may be granted. Id.

22 Plaintiff has also failed to plausibly allege a claim based on Defendants’ failure to

23 respond to his complaints and grievances or conduct an adequate investigation into his

24 complaints. “The Supreme Court has held that . . . to obtain a protectable right an

25 individual must have a legitimate claim of entitlement to it, [but] there is no legitimate

26 claim of entitlement to a grievance procedure.” Mann v. Adams, 855 F.2d 639, 640 (9th

27 Cir. 1988) (citations and quote marks omitted); see also Ramirez v. Galaza, 334 F.3d

28 850, 860 (9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement to a

1 specific prison grievance procedure.”)

2 Plaintiff has failed to state a claim for denial of due process regarding Defendants’

3 failure to follow prison rules and regulations regarding his transfer because inmates do

4 not have a due process right to reside at a particular prison. See Moody v. Daggett, 429

5 U.S. 78, 88 n.9 (1976) (“[A] prisoner has no constitutional right to a particular

6 classification status.”); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007) (concluding

7 California prisoner does not have liberty interest in residing at a particular prison);

8 Sandin v. Conner, 515 U.S. 472, 480 (1995) (“The Due Process Clause standing alone

9 confers no liberty interest in freedom from state action taken within the sentence

10 imposed.”)

11 Plaintiff claims Defendant Warden Guzman is liable for the actions of the other

12 Defendants because Guzman was aware of the events but refused to answer Plaintiff’s

13 letters or speak with him. Doc. No. 1 at 16-17. Guzman’s role as a supervisory official is

14 not sufficient to support a claim under § 1983. See Iqbal, 556 U.S. at 677 (“[E]ach

15 government official [in a § 1983 suit], his or her own title notwithstanding, is only liable

16 for his or her own misconduct.”); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002)

17 (“In order for a person acting under color of state law to be liable under section 1983

18 there must be a showing of personal participation in the alleged rights deprivation: there

19 is no respondeat superior liability under section 1983.”) The Complaint as presently

20 drafted fails to allege facts which if proven would support a § 1983 claim against Warden

21 Guzman in his supervisory role.

22 Plaintiff’s due process claim is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) and

23 1915A(b) for failure to state a claim. Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at

24 1004.

25 G. Access to Courts Claim

26 Plaintiff claims in an entirely conclusory manner “destruction of legal documents.”

27 Doc. No. 1 at 2. Inmates have a constitutional right of access to the courts. Lewis v.

28 Casey, 518 U.S. 343, 346 (1996). In order to state such a claim, Plaintiff must allege

1 facts showing actual injury arising from the lack of access to his legal materials, that is,

2 “actual prejudice with respect to contemplated or existing litigation, such as the inability

3 to meet a filing deadline or to present a claim.” Id. at 348. He must allege the loss of a

4 “non-frivolous” or “arguable” underlying claim. Christopher v. Harbury, 536 U.S. 403,

5 413-14 (2002). The nature and description of the underlying claim must be set forth in

6 the pleading “as if it were being independently pursued.” Id. at 417. Plaintiff has failed

7 to satisfy any of those pleading standards with respect to a denial of access to courts

8 claim, as he has not identified any underlying claim he was frustrated from presenting to

9 the courts.

10 To the extent Plaintiff intended to bring a denial of access to the courts claim it is

11 dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) for failure to state a claim.

12 Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

13 H. Equal Protection Claim

14 Plaintiff alleges Defendant Castillo “has been biased and prejudiced towards

15 blacks in multiple buildings [with a] very hostile tone and threatening manner.” Doc. No.

16 1 at 24. He alleges Castillo “treated plaintiff indifferent by denying Plaintiff his C-Status

17 phone call,” searched his cell, “tried to set plaintiff up to interfere with his hunger strike

18 by finding open food containers,” and “left bad reports and counseled other staff coming

19 on next shift to target plaintiff and not to give plaintiff nothing.” Id. at 24-25.

20 The Equal Protection Clause of the Fourteenth Amendment requires persons who

21 are similarly situated to be treated alike. City of Cleburne v. Cleburne Living Center,

22 Inc., 473 U.S. 432, 439 (1985). A plaintiff can state an equal protection claim by setting

23 forth facts which plausibly allege intentional discrimination based on membership in a

24 protected class. Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123

25 (9th Cir. 2013); Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994)

26 (“Intentional discrimination means that a defendant acted at least in part because of a

27 plaintiff’s protected status.”); Fields v. Legacy Health Sys., 413 F.3d 943, 955 (9th Cir.

28 2005) (identifying “race, alienage, national origin” as examples of characteristics

1 protected by the Equal Protection Clause). There are no factual allegations in the

2 Complaint which plausibly allege that any Defendant intentionally discriminated against

3 Plaintiff because of a protected status. To the extent Plaintiff intended to bring an equal

4 protection claim it is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for

5 failure to state a claim. Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

6 I. Leave to Amend

7 In light of Plaintiff’s pro se status, the Court grants him leave to amend his

8 pleading to attempt to sufficiently allege a § 1983 claim if he can. See Rosati v. Igbinoso,

9 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se

10 complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is

11 absolutely clear that the deficiencies of the complaint could not be cured by

12 amendment.’”), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).

13 III. CONCLUSION

14 For all the reasons discussed, the Court:

15 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C.

16 § 1915(a). Doc. No. 3.

17 2. ORDERS the Secretary of the CDCR, or her designee, to collect from

18 Plaintiff’s prison trust account the $350 filing fee owed in this case by collecting monthly

19 payments from the account in an amount equal to twenty percent (20%) of the preceding

20 month’s income and forward payments to the Clerk of the Court each time the amount in

21 the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS

22 MUST CLEARLY IDENTIFY THE NAME AND CASE NUMBER ASSIGNED TO

23 THIS ACTION.

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

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

26 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which

27 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) and

28 GRANTS Plaintiff thirty (30) days leave from the date of this Order in which to file an

1 || Amended Complaint which cures all the deficiencies of pleading noted. Plaintiffs

2 || Amended Complaint must be complete by itself without reference to his original

3 || pleading. Defendants not named and any claim not re-alleged in his Amended Complaint

4 || will be considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard

5 || Feiner and Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading

6 || supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)

7 || (noting that claims dismissed with leave to amend which are not re-alleged in an

8 ||amended pleading may be “considered waived if not repled.’’)

9 If Plaintiff fails to file an Amended Complaint within the time provided, the Court

10 || will enter a final Order dismissing this civil action based both on Plaintiff's failure to

11 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(11)

12 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring

13 ||amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

14 || not take advantage of the opportunity to fix his complaint, a district court may convert the

15 || dismissal of the complaint into dismissal of the entire action.”’)

16 IT IS SO ORDERED.

17 || Dated: May 27, 2025

is Mikula (dirlle

19 HON. MICHAEL M. ANELLO

20 United States District Judge

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