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7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

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10 DEMARUEA NORTH, Case No.: 3:25-cv-1750-WQH-LR

CDCR #BJ-7624,

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ORDER: (1) GRANTING MOTION

Plaintiff,

12 TO PROCEED IN FORMA

vs. PAUPERIS [ECF No. 3], AND

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14 (2) SCREENING THE COMPLAINT

SALAZAR, Sergeant, PURSUANT TO 28 U.S.C.

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§§ 1915(e)(2) & 1915A(b)

16 Defendant.

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HAYES, Judge:

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Plaintiff Demaruea North (“Plaintiff” or “North”), a prisoner who is proceeding pro

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se, has filed a civil rights action pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff

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alleges Defendant Salazar, a correctional sergeant at R.J. Donovan Correctional Facility

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(“RJD”), violated his constitutional rights by denying him a mattress and retaliating against

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him for stating his intent to file an administrative grievance about the matter. (See ECF No.

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1 at 8–9.) North also alleges a state law negligence claim against Salazar. (Id. at 9.) The

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Court initially dismissed the complaint because Plaintiff failed to pay the filing fee or move

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to proceed in forma pauperis. (ECF No. 2.) Plaintiff has now filed a Motion to Proceed In

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Forma Pauperis (“IFP”) and the case has been reopened. (ECF No. 3.)

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1 MOTION TO PROCEED IFP

2 Generally, a party filing a civil suit in federal district court must pay a filing fee of

3 $405.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire

4 fee at the time of filing only if the court grants the plaintiff leave to proceed IFP pursuant

5 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);

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

7 IFP application is denied altogether, plaintiff’s case [cannot] proceed unless and until the

8 fee[s] [a]re paid.”).

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

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

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

12 the filing of the complaint.” 28 U.S.C. §§ 1915(a)(1)–(2); Andrews v. King, 398 F.3d 1113,

13 1119 (9th Cir. 2005). Using this financial information, the court “assess[es] and when funds

14 exist, collect[s], . . . an initial partial filing fee,” which is “calculated based on ‘the average

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

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

17 payments of 20 percent of the preceding month’s income credited to the prisoner’s

18 account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. §§ 1915(b)(1)–(2)). In short, while

19 prisoners may qualify to proceed IFP without having to pay the full statutory filing up front,

20 they remain obligated to pay the full amount due in monthly payments. See Bruce v.

21 Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. §§ 1915(b)(1)–(2).

22 In support of his IFP motion, North has provided a copy of his prison trust account

23 statement and a certificate of funds. (See ECF No. 3.) During the six months prior to filing

24 suit, North had an average monthly balance of $36.67, average monthly deposits of $36.67;

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of

27 $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee

Schedule, § 14 (eff. Dec. 1, 2023). The additional $55 administrative fee does not apply to persons

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1 and he has a current available balance of $0.00. (Id. at 4, 6.) Accordingly, the Court grants

2 Plaintiff’s IFP motion. Because North has no funds on account, the Court assesses no initial

3 partial filing fee, and directs the agency having custody of Plaintiff to the $350 balance of

4 the filing fee required by 28 U.S.C. § 1914 and forward it to the Clerk of the Court pursuant

5 to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).

6 SCREENING

7 A. Legal Standards

8 Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the Court must sua sponte

9 screen a prisoner’s IFP complaint and dismiss it to the extent that it is frivolous, malicious,

10 fails to state a claim, or seeks damages from defendants who are immune. See Lopez v.

11 Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000); Rhodes v. Robinson, 621 F.3d 1002, 1004

12 (9th Cir. 2010). “The standard for determining whether Plaintiff has failed to state a claim

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

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

15 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a complaint “contain sufficient

16 factual matter . . . to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

17 556 U.S. 662, 678 (2009) (internal quotation marks omitted). While detailed factual

18 allegations are not required, “[t]hreadbare recitals of the elements of a cause of action,

19 supported by mere conclusory statements, do not suffice” to state a claim. Id. The “mere

20 possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me

21 accusation[s]” fall short of meeting this plausibility standard. Id.

22 “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right

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

24 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698

25 F.3d 1128, 1138 (9th Cir. 2012).

26 B. Factual Allegations

27 On September 30, 2022, when North was on “C-Yard” at RJD, Seargeant Salazar

28 overheard North assisting a fellow inmate in preparing an administrative grievance

1 regarding that inmate’s “right to have a mattress.” (ECF No. 1 at 8.) North told Salazar that

2 he would also be filing a 602 grievance because Salazar was “refusing” to provide North

3 with a mattress as well. (Id. at 9.) Salazar responded that “since [North] wanted to pursue

4 prison grievances [Salazar] would make sure [North] w[ould] not get a mattress.” (Id.)

5 Plaintiff also told Salazar he suffered from “physical disabilities,” but Salazar said “he did

6 not care” about Plaintiff’s disabilities. (Id.) Salazar refused to give North a mattress and,

7 as a result, North was without one for approximately six days. During that time, North

8 suffered severe, chronic pain in his neck, shoulders, back, arms, legs, and spine. (Id.) He

9 also experienced migraine headaches. Salazar’s conduct caused North to “need a walker

10 and months of physical therapy.” (Id.)

11 C. Discussion

12 North alleges Salazar violated his First Amendment right to be free from retaliation

13 and his Eighth Amendment right to be free from cruel and unusual punishment. (Id. at 8.)

14 Plaintiff also appears to raise a state law claim against Salazar for “gross negligence.” (Id.

15 at 9.) He seeks compensatory and punitive money damages. (Id. at 10.)

16 1. First Amendment Retaliation

17 “Within the prison context, a viable claim of First Amendment retaliation entails

18 five basic elements: (1) An assertion that a state actor took some adverse action against an

19 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled

20 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

21 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th

22 Cir. 2005). Put another way, a prisoner must show that the type of activity he was engaged

23 in was constitutionally protected, that the protected conduct was a substantial or motivating

24 factor for the alleged retaliatory action, and that the retaliatory action advanced no

25 legitimate penological interest. See Hines v. Gomez, 108 F.3d 265, 267–68 (9th Cir. 1997)

26 (inferring retaliatory motive from circumstantial evidence).

27 To the extent North alleges retaliation for assisting a fellow inmate in preparing an

28 administrative grievance, he has not alleged he was engaged in protected conduct. Inmates

1 do not have a “special First Amendment right to provide legal assistance to fellow

2 inmates.” Shaw v. Murphy, 532 U.S. 223, 228–29 (2001).

3 But Plaintiff also alleges he told Salazar he intended to submit his own

4 administrative grievance because Salazar was refusing to give Plaintiff a mattress. (ECF

5 No. 1 at 9.) “Prisoners have a First Amendment right to file grievances against prison

6 officials and to be free from retaliation for doing so.” Watison, 668 F.3d at 1114. A prisoner

7 can also bring a retaliation claim for adverse actions against him for making threats to sue

8 because such threats “fall within the purview of the constitutionally protected right to file

9 grievances.” Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017). Thus, the Court finds

10 North has plausibly alleged he was engaged in protected conduct. See Loftis v. Montes, No.

11 2:18-cv-4769-JFW (GJS), 2019 WL 3806388, at *4 (C.D. Cal. June 25, 2019) (“A majority

12 of district courts in California have held that an inmate’s threat to file a prison grievance is

13 entitled to First Amendment protection.”) (collecting cases), findings and

14 recommendations adopted by, 2019 WL 3802187 (C.D. Cal. Aug. 13, 2019); Garcia v.

15 Strayhorn, No. 13-CV-807-BEN (KSC), 2014 WL 4385410, at *6 (S.D. Cal. Sept. 3, 2014)

16 (“[A] number of courts have concluded that verbal statements made by an inmate that

17 essentially constitute a grievance, or that indicate an intent to file a formal written

18 grievance, are protected by the First Amendment.”) (collecting cases).

19 Furthermore, North alleges that immediately after he told Salazar of his intent to file

20 an administrative grievance, Salazar responded that if North “wanted to pursue prison

21 grievances” he would “make sure” North would not get a mattress. (ECF No. 1 at 9.)

22 Plaintiff alleges he then went six days without a mattress and, because of his disabilities,

23 he suffered migraine headaches and pain in his neck, shoulders, and back. (Id.)

24 In sum, the Court finds North has alleged sufficient facts to state a plausible First

25 Amendment retaliation claim. See Watison, 668 F.3d at 1114 (“A plaintiff who fails to

26 allege a chilling effect may still state a claim if he alleges he suffered some other harm that

27 is more than minimal.”) (internal citations omitted); Pratt v. Rowland, 65 F.3d 802, 806

28 (9th Cir. 1995) (noting the adverse action taken against a prisoner “need not be an

1 independent constitutional violation”); Iqbal, 556 U.S. at 678.

2 2. Eighth Amendment

3 In his second claim for relief, North alleges Salazar violated his Eighth Amendment

4 rights by denying him a mattress for six days. (ECF No. 1 at 9.) “The Eighth Amendment’s

5 prohibition against cruel and unusual punishment protects prisoners not only from

6 inhumane methods of punishment but also from inhumane conditions of confinement.”

7 Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). To challenge conditions of

8 confinement under the Eighth Amendment, a plaintiff must show: (1) objectively, the

9 official’s act or omission is so serious that it results in the denial of the minimal civilized

10 measure of life's necessities; and (2) subjectively, the prison official acted with “deliberate

11 indifference.” See Farmer v. Brennan, 511 U.S. 825, 834 (1994).

12 The objective prong requires showing that the deprivation was sufficiently serious

13 to form the basis for an Eighth Amendment violation. Johnson v. Lewis, 217 F.3d 726, 731

14 (9th Cir. 2000). “[E]xtreme deprivations are required to make out a conditions-of-

15 confinement claim.” Hudson v. McMillian, 503 U.S. 1, 9 (1992).

16 The subjective prong requires showing that the prison official acted with deliberate

17 indifference. To do so, a plaintiff must establish the prison official subjectively “knows

18 that inmates face a substantial risk of serious harm and disregards that risk by failing to

19 take reasonable measures to abate it.” Farmer, 511 U.S. at 847. Deliberate indifference is

20 a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To meet it,

21 “the prison official must not only ‘be aware of the facts from which the inference could be

22 drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the

23 inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). Even if a prison official should

24 have been aware of the risk but was not, there is no Eighth Amendment violation, no matter

25 how severe the risk. Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014).

26 Here, North alleges Salazar deprived him of a mattress for six days. When

27 determining whether a condition of confinement is objectively serious, courts consider

28 “[t]he circumstances, nature, and duration of [the] deprivation.” Johnson v. Lewis, 217 F.3d

1 726, 731 (9th Cir. 2000); Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). The

2 Ninth Circuit has noted “there is no clear legal guidance on whether mattress deprivation”

3 amounts to an Eighth Amendment violation. Jones v. Neven, 678 F. App’x 490, 493 (9th

4 Cir. 2017) (internal quotation marks omitted) (concluding defendants were entitled to

5 qualified immunity because it was not clearly established that depriving prisoner of a

6 mattress or bed for four days was clearly unlawful); Chappell v. Mandeville, 706 F.3d

7 1052, 1060 (9th Cir. 2013) (finding defendants entitled to qualified immunity because it

8 was not clearly established that mattress deprivation for seven days violated Eighth

9 Amendment). Moreover, many district courts in the Ninth Circuit have concluded that

10 temporary deprivations of a mattress or bedding are not sufficiently serious to support an

11 Eighth Amendment claim. See Presti v. Telefoni, No. 21-00405 LEK-WRP, 2021 WL

12 4824107, at *7 (D. Haw. Oct. 15, 2021) (being deprived of bed for nine days failed to state

13 an Eighth Amendment claim); Hirano v. Williams, No. EDCV 13-2371-DMG (AGR),

14 2017 WL 11632461, at *12 (C.D. Cal. Mar. 24, 2017) (“[A] seven-day deprivation of a

15 mattress generally does not rise to the level of an Eighth Amendment violation.”); Gordon

16 v. Cate, No. 11-cv-03593-JST (PR), 2014 WL 848212, at *4 (N.D. Cal. Feb. 28, 2014)

17 (concluding seven days with a thin, dirty, stained, and smelly mattress and no pillow was

18 not sufficiently serious to rise to the level of an Eighth Amendment violation); Centeno v.

19 Wilson, No. 1:08-cv-1435-FJM, 2011 WL 836747, at *3 (E.D. Cal. Mar. 4, 2011) (finding

20 no Eighth Amendment violation where prisoner was forced to sleep on a cold floor without

21 a mattress, blanket, or the ability to shower for seven days), aff’d, 479 F. App’x 101 (9th

22 Cir. 2012). The Court finds Plaintiff’s lack of a mattress for six days does not by itself

23 amount to an “objectively [and] ‘sufficiently serious’” deprivation under the Eighth

24 Amendment. See Farmer, 511 U.S. at 834 (citation omitted).

25 Furthermore, although North alleges he suffers from “disabilities” that may have

26 contributed to the seriousness of the mattress deprivation, he does not specify the nature or

27 extent of these disabilities in his Complaint. Nor does he allege Salazar was aware of the

28 specific nature of his condition(s). Thus, even assuming a serious deprivation, North’s

1 general statement to Salazar that he had “physical disabilities” (see ECF No. 1 at 9) is

2 insufficient to plausibly allege knowledge or deliberate indifference on Salazar’s part. See

3 Farmer, 511 U.S. at 844 (“[P]rison officials who lack[] knowledge of a risk cannot be said

4 to have inflicted punishment.”); Peralta, 744 F.3d at 1086 (noting that if a prison official

5 should have been aware of the risk but was not, there is no Eighth Amendment violation,

6 no matter how severe the risk).

7 The Court finds Plaintiff has failed to state an Eighth Amendment claim against

8 Salazar. The claim must be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

9 1915A(b)(1). See Iqbal, 556 U.S. at 678.

10 3. State Law Negligence Claim

11 Finally, North fails to state a claim for “gross negligence” under California state law.

12 Under the California Tort Claims Act (“CTCA”), set forth in California Government Code

13 sections 810 et seq., a plaintiff may not bring a suit for monetary damages against a public

14 employee or entity unless the plaintiff first presented the claim to the California Victim

15 Compensation and Government Claims Board (“Board”) and the Board acted on the claim,

16 or the time for doing so expired. “The Tort Claims Act requires that any civil complaint

17 for money or damages first be presented to and rejected by the pertinent public entity.”

18 Munoz v. California, 33 Cal. App. 4th 1767, 1776 (Cal. App. 1995). The purpose of this

19 requirement is “to provide the public entity sufficient information to enable it to adequately

20 investigate claims and to settle them, if appropriate, without the expense of litigation.” City

21 of San Jose v. Superior Court, 12 Cal. 3d 447, 455 (Cal. 1974) (citations omitted).

22 Compliance with the “claim presentation requirement” constitutes an element of a

23 cause of action for damages against a public entity or official. State v. Superior Court

24 (Bodde), 32 Cal. 4th 1234, 1239 (Cal. 2004) (“[F]ailure to allege facts demonstrating or

25 excusing compliance with the claim presentation requirement subjects a claim against a

26 public entity to a demurrer for failure to state a cause of action.”). Here, North has failed

27 to allege his “gross negligence” claim was “presented to and rejected by the pertinent public

28 entity,” as required under California law. Therefore, Plaintiff has failed to plausibly allege

1 a California state law negligence claim against Salazar. The Court thus dismisses the “gross

2 negligence” claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Iqbal, 556

3 U.S. at 678.

4 D. Plaintiff’s Options

5 In sum, having conducted sua sponte screening of the complaint, the Court finds

6 Plaintiff has plausibly alleged a First Amendment retaliation claim against Salazar but has

7 failed to state an Eighth Amendment or state negligence claim against him. See 28 U.S.C.

8 §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

9 Therefore, IT IS HEREBY ORDERED that Plaintiff may either: (1) proceed with

10 his First Amendment retaliation claim as currently alleged or (2) file an amended complaint

11 that addresses the pleading deficiencies the Court has identified. See Rosati v. Igbinoso,

12 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint

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

14 clear that the deficiencies of the complaint could not be cured by amendment.”) (internal

15 quotation marks omitted).

16 IT IS FURTHER ORDERED that Plaintiff must choose one of the above options

17 within sixty (60) days from the date this Order is filed. If Plaintiff notifies the Court he

18 wishes to proceed only with his First Amendment retaliation claim against Salazar, the

19 Court will issue an order directing the Clerk to issue the summons and the U.S. Marshal to

20 effect service of the summons and complaint on Defendant Salazar, and his other claims

21 will remain dismissed from this action. Should Plaintiff elect to file an amended complaint,

22 that pleading will be subject to another preliminary screening pursuant to 28 U.S.C.

23 §§ 1915(e)(2) and 1915A(b) before the Court determines whether U.S. Marshal Service

24 upon any defendant is warranted.

25 CONCLUSION

26 For the reasons discussed above, the Court:

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

28 (2) ORDERS the Secretary of the CDCR, or his designee, to collect from

1 || Plaintiff's trust account and forward the $350 owed in monthly payments in an amount

2 || equal to twenty (20%) percent of the preceding month’s income to the Clerk of the Court

3 |}each time the amount in Plaintiff's account exceeds $10.00 pursuant to 28 U.S.C.

4 1915(b)(2).

5 (3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail

6 ||on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation,

7 ||P.0. Box 942883, Sacramento, California, 94283-0001.

8 (4) DISMISSES Plaintiffs Eighth Amendment and state law “negligence”

9 |iclaims against Salazar for failure to state a claim, pursuant to 28 U.S.C.

10 || §§ 1915(e)(2)(B)Gi) and 1915A(b)(1).

1] (5) GRANTS Plaintiff sixty (60) days leave from the date of this Order to file

12 || either: (a) a Notice of Intent to proceed with his First Amendment retaliation claim against

13 || Salazar; OR (b) an Amended Complaint that cures the pleading deficiencies noted above.

14 If Plaintiff chooses to proceed with his First Amendment retaliation claim, the Court

15 |] will issue an Order directing the U.S. Marshal to effect service of the complaint on Salazar

16 dismiss Plaintiff's Eighth Amendment and state law negligence claims against Salazar.

17 If Plaintiff chooses to file an amended pleading correcting the deficiencies outlined

18 |/in this Order, his amended complaint must be complete in itself, without reference to the

19 || original pleading. Any claims not re-alleged in the amended complaint will be considered

20 || waived. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546

21 Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa

22 || Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting claims dismissed with leave to amend that

23 || are not re-alleged in an amended pleading may be “considered waived if not repled.”’).

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5 Dated: November 17, 2025 BME Lo Z. A a

2%6 Hon. William Q. Hayes

97 United States District Court

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