# North

> District Court, S.D. California · November 17, 2025

URL: https://www.frixlaw.com/law-library/cases/11210532

## Case

- **Full name:** Demaruea North v. Salazar, Sergeant
- **Court:** District Court, S.D. California
- **Decided:** November 17, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11210532

## How later opinions describe it (automated extraction)

- noting claims dismissed with leave to amend that 23 || are not re-alleged in an amended pleading may be “considered waived if not repled.”’
- finding defendants entitled to qualified immunity because it 8 was not clearly established that mattress deprivation for seven days violated Eighth 9 Amendment
- noting claims dismissed with leave to amend that 23 || are not re-alleged in an amended pleading may be “considered waived if not repled.”’

## Opinion text

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11210532. Public record. Not legal advice.