“A district court should not dismiss a pro 7 se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of 8 the complaint could not be cured by amendment.’”
How later courts described this case
- “A district court should not dismiss a pro 7 se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of 8 the complaint could not be cured by amendment.’”
- noting that claims 3 || dismissed with leave to amend which are not re-alleged in an amended pleading may be 4 “considered waived if not repled.”’
- “Failure to state a claim under § 1915A incorporates the familiar standard applied 28 in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”
- “State 5 agencies . . . are not ‘persons’ within the meaning of § 1983, and are therefore not amenable 6 to suit under that statute.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 CHARLES KINSEY, Case No.: 3:25-cv-1225-BEN-DDL
CDCR# P-04738,
12
ORDER:
Plaintiff,
13
vs. (1) GRANTING MOTION FOR LEAVE
14
TO PROCEED IN FORMA PAUPERIS
15 [ECF No. 5]
SUSAN PASHA, Nurse Practitioner;
16 CDCR; HALL, ADA Coordinator;
AND
JOHN DOES 1-10,
17
Defendants. (2) DISMISSING COMPLAINT WITH
18
LEAVE TO AMEND PURSUANT TO 28
19 U.S.C. §§ 1915(e)(2) AND 1915A(b)
20
21
22 Plaintiff Charles Kinsey, currently incarcerated at Richard J. Donovan Correctional
23 Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed a civil rights
24 Complaint pursuant to 42 U.S.C. § 1983 arising from events that occurred during his
25 confinement at RJD. (ECF No. 1.) Plaintiff did not pay the filing fee required by 28 U.S.C.
26 § 1914(a) to commence a civil action when he filed his Complaint. Instead, he has filed a
27 Motion for Leave to Proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a).
28 (ECF No. 5.)
1 For the reasons discussed below, the Court grants Plaintiff’s IFP motion and
2 dismisses his Complaint because it fails to state a claim upon which relief may be granted.
3 I. Motion to Proceed IFP
4 All parties instituting any civil action, suit or proceeding in a district court of the
5 United States, except an application for writ of habeas corpus, must pay a filing fee of
6 $405.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
7 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
8 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, all
9 prisoners who proceed IFP must pay any remaining balance in “increments” or
10 “installments,” Bruce v. Samuels, 577 U.S. 82, 83–84 (2016), regardless of whether their
11 action is ultimately dismissed. 28 U.S.C. § 1915(b)(1)&(2); Taylor v. Delatoore, 281 F.3d
12 844, 850 (9th Cir. 2002).
13 To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit
14 regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th
15 Cir. 2015). A prisoner seeking leave to proceed IFP must also submit a “certified copy of
16 the trust fund account statement (or institutional equivalent) for . . . the 6-month period
17 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.
18 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the
19 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account
20 for the past six months, or (b) the average monthly balance in the account for the past six
21 months, whichever is greater, unless the prisoner has insufficient assets. See 28 U.S.C.
22 § 1915(b)(1)&(4); Bruce, 577 U.S. at 84.
23 Plaintiff’s prison certificate shows he had an average monthly balance of $56.21 and
24 average monthly deposits of $6.67 for the six months preceding the filing of this action,
25
26
27 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See
28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.
28
1 with an available balance of zero. (ECF No. 5 at 4.) Therefore, the Court GRANTS
2 Plaintiff’s motion to proceed IFP and assesses no initial partial filing fee because it appears
3 Plaintiff may have no means with which to pay one. See 28 U.S.C. § 1915(b)(4) (providing
4 that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing
5 a civil action or criminal judgment for the reason that the prisoner has no assets and no
6 means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that
7 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP
8 case based solely on a “failure to pay . . . due to the lack of funds available to him when
9 payment is ordered.”) While the Court does not assess an initial partial filing fee, Plaintiff
10 is required to pay the entirety of the $350 filing fee required by 28 U.S.C. § 1914 pursuant
11 to the installment payment provisions of 28 U.S.C. § 1915(b)(1).
12 II. Sua Sponte Screening Pursuant to 28 U.S.C. §§ 1915(e) and 1915A(b)
13 A. Standard of Review
14 Because Plaintiff is a prisoner proceeding IFP, his Complaint requires a pre-Answer
15 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua sponte
16 dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails
17 to state a claim, or seeks damages from defendants who are immune. Lopez v. Smith, 203
18 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes
19 v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The
20 purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious suits need not
21 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir.
22 2014), quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012).
23 “The standard for determining whether a plaintiff has failed to state a claim upon
24 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
25 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
26 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
27 2012) (“Failure to state a claim under § 1915A incorporates the familiar standard applied
28 in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”)
1 Rule 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true,
2 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
3 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
4 “Determining whether a complaint states a plausible claim for relief [is] . . . a context-
5 specific task that requires the reviewing court to draw on its judicial experience and
6 common sense.” Id. at 679. “[T]he tenet that a court must accept as true all of the
7 allegations contained in a complaint is inapplicable to legal conclusions. Threadbare
8 recitals of the elements of a cause of action, supported by mere conclusory statements, do
9 not suffice.” Id. at 678. Also, while the court “ha[s] an obligation where the petitioner is
10 pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the
11 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.
12 2010), citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985), it may not “supply
13 essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ.
14 of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
15 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,
16 acting under color of state law, violate federal constitutional or statutory rights.”
17 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability,
18 a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws
19 of the United States, and (2) that the deprivation was committed by a person acting under
20 color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
21 B. Allegations in the Complaint
22 Plaintiff claims he is visually impaired and was transferred to RJD in January 2020
23 while RJD was undergoing renovations to become compliant with the Americans with
24 Disabilities Act (“ADA”). (ECF No. 1 at 3.) Plaintiff alleges Defendants knew a path to
25 RJD’s education facility was on “extreme uneven terrain” and people had previously fallen
26 and “sustained serious injury.” (Id.) Plaintiff alleges Defendants could have fixed the
27 pavement, could have transferred him to a compliant facility or could have continued his
28 use of a wheelchair, but chose none of those options. (Id.) Instead, Defendant Nurse
1 Practitioner Pasha discontinued his use of the wheelchair on January 18, 2023. (Id.)
2 Plaintiff alleges he told Pasha he could not see the cracks in the pavement, which increased
3 his risk of a fall, could not safely access education, and requested to see a doctor. (Id.) But
4 Pasha, who was not a doctor and “was unqualified to treat plaintiff,” said: “Since you think
5 I am unqualified to treat you I will take the chair until the Doctor sees you.” (Id.) Plaintiff
6 was instead provided with a walker, and when he asked what he should do to effectively
7 get to education, Pasha stated: “If you fall, put in a sick call slip, maybe you will see the
8 doctor.” (Id. at 4.) Plaintiff further asserts Defendant ADA Coordinator Hall “personally
9 oversaw the lack of safe conditions,” failed to act to prevent them, and “was under the
10 impression that getting to school without adequate accom[m]odations was ‘[his]
11 problem.’” (Id.)
12 Plaintiff also alleges that after his fall, he was provided with deficient treatment, in
13 part because the events in question took place during the Covid-19 pandemic, during which
14 there were CDCR policy restrictions on inmate movement to prevent spread. (Id. at 5.)
15 Plaintiff states that “[a]fter 3 days of suffering pain from the fall,” he sought treatment and
16 admits Nurse Pasha “tried to treat [him].” (Id.) When Pasha responded to his cell, she
17 asked Plaintiff if he had Covid symptoms, and when Plaintiff asked to “be moved out of
18 other inmates earshot” instead of simply answering yes or no, Pasha “per department policy
19 walked away and treated the failure to answer as a refusal.” (Id.)
20 Plaintiff now brings: (1) an Eighth Amendment claim alleging a failure to protect
21 him from harm; (2) an ADA claim; (3) an Eighth Amendment claim alleging denial of
22 medical care; and (4) a claim alleging a violation of the Health Insurance Portability and
23 Accountability Act (“HIPAA”). (Id. at 2–9.) He seeks $1,125,000 in general and punitive
24 damages and “[a]ll relief the court deem just and proper.” (Id. at 8.)
25 C. Discussion
26 As an initial matter, Plaintiff may not proceed against Defendant CDCR on his
27 Eighth Amendment claims because CDCR is not a “person” subject to suit under § 1983.
28 See Devereaux, 263 F.3d at 1074 (Title 42 U.S.C. § 1983 “creates a private right of action
1 against individuals who, acting under color of state law, violate federal constitutional or
2 statutory rights.”); see Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989)
3 (“[N]either a State nor its officials acting in their official capacities are ‘persons’ under
4 § 1983.”); see also Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir. 2004) (“State
5 agencies . . . are not ‘persons’ within the meaning of § 1983, and are therefore not amenable
6 to suit under that statute.”), citing Will, 491 U.S. at 70.
7 Nor may Plaintiff proceed with a claim for damages against CDCR or any of the
8 Defendants in their “official capacity” because such claims are barred under the Eleventh
9 Amendment. Absent “a waiver by the state or a valid congressional override,” Dittman v.
10 California, 191 F.3d 1020, 1025 (9th Cir. 1999), “[t]he Eleventh Amendment bars suits for
11 money damages in federal court against a state, its agencies, and state officials acting in
12 their official capacities.” Aholelei v. Department of Public Safety, 488 F.3d 1144, 1147
13 (9th Cir. 2007). “The State of California has not waived its Eleventh Amendment
14 immunity with respect to claims brought under § 1983 in federal court.” Dittman, 191 F.3d
15 at 1025–26; see Alabama v. Pugh, 438 U.S. 781, 782 (1978) (“There can be no doubt,
16 however, that suit against the State and its Board of Corrections is barred by the Eleventh
17 Amendment, unless [the State] has consented to the filing of such a suit.”) Accordingly,
18 the Court dismisses CDCR as a Defendant as to Plaintiff’s Eighth Amendment claims for
19 damages and dismisses all Defendants to the extent Plaintiff seeks damages against them
20 in their official capacities. The Court will proceed to consider Plaintiff’s claims against
21 the remaining named Defendants.
22 1. Eighth Amendment- failure to protect
23 “[A] prison official violates the Eighth Amendment when two requirements are met.
24 First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v.
25 Brennan, 511 U.S. 825, 834 (1994), quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991).
26 Second, “a prison official must have a ‘sufficiently culpable state of mind,’” that is, “one
27 of ‘deliberate indifference’ to inmate health or safety.” Id., quoting Wilson, 501 U.S. at
28 302–03. “[A] prison official cannot be found liable under the Eighth Amendment for
1 denying an inmate humane conditions of confinement unless the official knows of and
2 disregards an excessive risk to inmate health or safety; the official must both be aware of
3 facts from which the inference could be drawn that a substantial risk of serious harm exists,
4 and he must also draw the inference.” Id. at 837.
5 Plaintiff alleges generally that Defendants Pasha and Hall failed to protect him from
6 harm in violation of the Eighth Amendment. (ECF No. 1 at 3–4.) However, his allegations
7 are insufficient to state an Eighth Amendment violation because he fails to plausibly allege
8 the asserted deprivation was “objectively, ‘sufficiently serious,’” or that either named
9 Defendant had a “sufficiently culpable state of mind.” Id. at 834, quoting Wilson, 501 U.S.
10 at 298. With respect to Hall, Plaintiff only alleges Hall “personally oversaw the lack of
11 safe conditions” and failed to act to prevent them. (Id. at 4.) As to Pasha, Plaintiff alleges
12 only that she discontinued his use of a wheelchair and instead provided him with a walker.
13 (Id. at 3–4.)
14 While Plaintiff plausibly alleges Hall and Pasha were aware of the condition of the
15 walkway by way of Plaintiff’s “progress notes” and from staff/teachers who notified them
16 other individuals had fallen and sustained injury (id. at 3), and Defendants were generally
17 aware the walkway needed repair, he does not plausibly allege any Defendant actually
18 drew an inference that the condition of the walkway posed a substantial risk of serious
19 harm to him. See Farmer, 511 U.S. at 835 (“[D]eliberate indifference describes a state of
20 mind more blameworthy than negligence” and “‘more than ordinary lack of due care for
21 the prisoner’s interests or safety.’”), quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)
22 and citing Estelle v. Gamble, 429 U.S. 97, 104, 106 (1976). If Plaintiff wishes to proceed
23 with this claim, he must set forth facts which plausibly allege that Defendants were aware
24 of facts from which they could draw an inference that the substitution of a walker in place
25 of a wheelchair presented a substantial risk of serious harm to Plaintiff and that they also
26 drew that inference. Id. at 837; see also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.
27 2004) (“Deliberate indifference is a high legal standard.”)
28 ///
1 Additionally, in order to state a claim, Plaintiff must set forth facts demonstrating
2 that he suffered a sufficiently grave physical injury due to a Defendant’s deliberate
3 indifference to the substantial or excessive risk of serious harm. See Oliver v. Keller, 289
4 F.3d 623, 627 (9th Cir. 2002) (holding that the PLRA “requires a prior showing of physical
5 injury that need not be significant but must be more than de minimis.”); see also Goode v.
6 Canedo, S.D. Cal. Case No. 21-cv-2054-GPC-KSC, 2022 WL 16753312, at *6 (S.D. Cal.
7 Nov. 7, 2022) (“The threshold of physical injury necessary is not specified in the PLRA,
8 but courts have interpreted this to require physical injury more than de minimis.”), citing
9 Oliver, 289 F.3d at 628 (9th Cir. 2002). Here, Plaintiff claims he fell, but he provides no
10 details about the fall itself, nor does he specify any injuries suffered. (See ECF No. 1 at 5.)
11 Accordingly, Plaintiff’s Eighth Amendment deliberate indifference claim against
12 Pasha and Hall arising from an alleged failure to protect is dismissed sua sponte pursuant
13 to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim.
14 2. ADA Claim
15 Plaintiff next asserts a violation of the ADA, naming Defendants Pasha, Hall, and
16 the CDCR. (ECF No. 1 at 2-4.) First, Plaintiff may not pursue an ADA claim against
17 either Defendants Hall or Pasha in their individual capacities. See Vinson v. Thomas, 288
18 F.3d 1145, 1156 (9th Cir. 2002) (“[A] plaintiff cannot bring an action under 42 U.S.C.
19 § 1983 against a State official in [their] individual capacity to vindicate rights created by
20 Title II of the ADA . . .”); see also Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002)
21 (“The ADA applies only to public entities . . .”) Therefore, the Court dismisses Pasha and
22 Hall as Defendants with respect to the ADA claim.
23 Plaintiff may, however, pursue an ADA claim for damages against the CDCR. See
24 United States v. Georgia, 546 U.S. 151, 154 (2006) (“Title II [of the ADA] authorizes suits
25 by private citizens for money damages against public entities that violate § 12132.”)
26 (additional citations omitted). To state a claim under the ADA, however, Plaintiff must
27 allege:
28 ///
1 (1) he ‘is an individual with a disability;’ (2) he ‘is otherwise qualified to
participate in or receive the benefit of some public entity’s services, programs,
2
or activities;’ (3) he ‘was either excluded from participation in or denied the
3 benefits of the public entity’s services, programs, or activities, or was
otherwise discriminated against by the public entity;’ and (4) ‘such exclusion,
4
denial of benefits, or discrimination was by reason of (his) disability.’
5
6 O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007) (citations
7 omitted).
8 Here, Plaintiff only generally alleges that “by accepting federal funds from the ADA
9 program the state institution waived its 11th [A]mendment protection.” (ECF No. 1 at 2.)
10 Plaintiff’s Complaint fails to state an ADA claim because he fails to plausibly allege that
11 he was excluded from participation, denied any benefits, or was discriminated against by
12 the CDCR, nor does he allege that any action by Defendant CDCR was taken by reason of
13 his disability. O’Guinn, 502 F.3d at 1060.
14 Accordingly, Plaintiff’s ADA claim is dismissed sua sponte pursuant to 28 U.S.C.
15 §§ 1915(e)(2) & 1915A(b) for failure to state a claim.
16 3. Eighth Amendment- denial of medical care
17 Plaintiff next alleges Defendant Pasha denied him medical care in violation of the
18 Eighth Amendment, but asserts only that “[a]fter my fall, the treatment provided was
19 deficient.” (ECF No. 1 at 5.) Plaintiff acknowledges that Defendant Pasha responded to
20 his cell but treated his failure to answer whether he had Covid symptoms as a “refusal,”
21 and as a result, he did not receive treatment. (Id.)
22 The Eighth Amendment’s prohibition against cruel and unusual punishment
23 “establish[es] the government’s obligation to provide medical care for those it is punishing
24 by incarceration.” Gamble, 429 U.S. at 102–03. “In order to prevail on an Eighth
25 Amendment claim for inadequate medical care, a plaintiff must show ‘deliberate
26 indifference’ to his ‘serious medical needs.’” Colwell v. Bannister, 763 F.3d 1060, 1066
27 (9th Cir. 2014), quoting Gamble, 429 U.S. at 104. “Deliberate indifference ‘may appear
28 when prison officials deny, delay or intentionally interfere with medical treatment, or it
1 may be shown by the way in which prison physicians provide medical care.’” Id., quoting
2 Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).
3 Plaintiff’s allegations are insufficient to state an Eighth Amendment claim because
4 he first fails to plausibly allege Pasha was deliberately indifferent to his “‘serious medical
5 needs.’” Colwell, 763 F.3d at 1066, quoting Gamble, 429 U.S. at 104. Plaintiff alleges
6 only that he “suffer[ed] pain from the fall” and was not provided with care when he sought
7 treatment three days later. (ECF No. 1 at 5.) Yet critically, he does not explain the nature
8 or extent of any injury sustained and does not specify what treatment was needed and not
9 provided. Nor does Plaintiff allege the failure to provide treatment could have either
10 “result[ed] in further significant injury” or in an “unnecessary and wanton infliction of
11 pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (“[T]he plaintiff must show a
12 ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition could
13 result in further significant injury or the unnecessary and wanton infliction of pain.’”)
14 (citations and some internal quote marks omitted).
15 Plaintiff also fails to allege that Pasha’s response, or more accurately her failure to
16 respond to his pain, was deliberately indifferent in that it resulted in actual harm to
17 Plaintiff. See id. (to state a claim of deliberate indifference, a plaintiff must show both “(a)
18 a purposeful act or failure to respond to a prisoner’s pain or possible medical need and
19 (b) harm caused by the indifference.”) Again, Plaintiff alleges he was in pain for three
20 days, but he does not describe any “purposeful act or failure” by Pasha. Instead, he admits
21 Pasha did respond to his cell to ask Plaintiff if he had Covid symptoms. He does not specify
22 what, if any, harm resulted from Pasha’s asserted failure to provide treatment for his
23 unspecified pain.
24 Accordingly, Plaintiff’s Eighth Amendment deliberate indifference claim against
25 Pasha arising from an alleged denial of medical care is dismissed sua sponte pursuant to
26 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim.
27 ///
28 ///
1 4. HIPAA
2 Plaintiff also alleges a denial of his HIPAA rights as a result of the CDCR’s Covid
3 policies. (Id. at 5.) However, the Complaint fails to state a claim against either Defendant
4 Pasha or CDCR because “‘HIPAA itself provides no private right of action.’” Garmon v.
5 County of Los Angeles, 828 F.3d 837, 847 (9th Cir. 2016), quoting Webb v. Smart
6 Document Sols., LLC, 499 F.3d 1078, 1081 (9th Cir. 2007); see also Adams v. Eureka Fire
7 Protection District, 352 Fed. Appx. 137, 139 (8th Cir. 2009) (“Since HIPAA does not
8 create a private right, it cannot be privately enforced either via § 1983 or through an implied
9 right of action.”)
10 Accordingly, Plaintiff’s HIPAA claim is dismissed sua sponte pursuant to 28 U.S.C.
11 §§ 1915(e)(2) & 1915A(b) for failure to state a claim.
12 5. John Doe Defendants
13 Finally, Plaintiff includes John Does 1–10 as parties to his Complaint, but he does
14 not identify a county of residence or title/position for any of these individuals or make any
15 specific allegations involving any of these Defendants. (See ECF No. 1 at 2.)
16 While “the use of ‘John Doe’ to identify a defendant is not favored,” Gillespie v.
17 Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), citing Wiltsie v. California Department of
18 Corrections, 406 F.2d 515, 518 (9th Cir. 1968), the Ninth Circuit has also recognized that
19 “situations arise . . . where the identity of alleged defendants will not be known prior to the
20 filing of a complaint” and instructed that “[i]n such circumstances, the plaintiff should be
21 given an opportunity through discovery to identify the unknown defendants, unless it is
22 clear that discovery would not uncover the identities, or that the complaint would be
23 dismissed on other grounds.” Gillespie, 629 F.2d at 642 (additional citations omitted).
24 Here, however, John Does 1–10 must be dismissed on “other grounds,” id., because
25 Plaintiff does not make any specific factual allegations as to any claimed action or inaction
26 by any of these individuals. (See generally ECF No. 1); see also Leer v. Murphy, 844 F.2d
27 628, 633 (9th Cir. 1988) (“The inquiry into causation must be individualized and focus on
28 the duties and responsibilities of each individual defendant whose acts or omissions are
1 alleged to have caused a constitutional deprivation.”) Thus, because Plaintiff fails to allege
2 any action or inaction by these Defendants relating to any of the asserted constitutional
3 violations, the Does must be dismissed from this action.
4 6. Leave to Amend
5 Given Plaintiff’s pro se status, the dismissal is with leave to amend. See Rosati v.
6 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro
7 se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of
8 the complaint could not be cured by amendment.’”), quoting Akhtar v. Mesa, 698 F.3d
9 1202, 1212 (9th Cir. 2012).
10 III. Conclusion and Order
11 Good cause appearing, the Court:
12 1) GRANTS Plaintiff’s motion to proceed IFP pursuant to 28 U.S.C. § 1915(a)
13 [ECF No. 5].
14 2) ORDERS the Secretary of the CDCR, or his designee, to collect from
15 Plaintiff’s trust account the $350 filing fee assessed in monthly payments in an amount
16 equal to twenty (20%) percent of the preceding month’s income to the Clerk of the Court
17 each time the amount in Plaintiff’s account exceeds $10.00 pursuant to 28 U.S.C.
18 § 1915(b)(2).
19 3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail
20 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation,
21 P.O. Box 942883, Sacramento, California, 94283-0001.
22 4) DISMISSES Plaintiff’s Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) &
23 1915A(b) for failing to state a claim upon which relief may be granted and GRANTS
24 Plaintiff forty-five (45) days leave from the date of this Order in which to file a First
25 Amended Complaint which cures the deficiencies of pleading noted. Plaintiff’s First
26 Amended Complaint must be complete by itself without reference to any prior version of
27 his pleading, and any defendants not named and any claims not re-alleged will be
28 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
1 || and Co. Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
2 || original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims
3 || dismissed with leave to amend which are not re-alleged in an amended pleading may be
4 “considered waived if not repled.”’)
5 If Plaintiff fails to timely amend, the Court will enter a final Order dismissing this
6 || civil action based both on Plaintiff's failure to state a claim upon which relief can be
7 || granted pursuant to 28 U.S.C. § 1915A and his failure to prosecute in compliance with a
8 court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005)
9 || “If a plaintiff does not take advantage of the opportunity to fix his complaint, a district
10 |}court may convert the dismissal of the complaint into dismissal of the entire action.”)
11 IT IS SO ORDERED. | :
12 || Dated: 9/23/25
13 onorable Roger T. Benitez
14 United States District Judge
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