The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 JAKAN MILLS, Case No.: 25-cv-2158-AJB-DEB
CDCR #P11240,
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ORDER:
Plaintiff,
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vs. (1) GRANTING MOTION TO
14 PROCEED IN FORMA PAUPERIS;
CORRECTIONAL OFFICER PATRICIO;
15 AND
CORRECTIONAL OFFICER VALENCIA;
16 AND CALIFORNIA DEPARTMENT OF (2) DISMISSING COMPLAINT FOR
CORRECTIONS AND FAILURE TO STATE A CLAIM
17
REHABILITATION, PURSUANT TO 28 U.S.C.
18 Defendants. §§ 1915(e)(2) & 1915A(b)
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20 Plaintiff Jakan Mills is a state inmate currently incarcerated at Richard J. Donovan
21 Correctional Facility (“RJD”) in San Diego, California, proceeding pro se with a civil rights
22 Complaint pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) After the Court dismissed this civil
23 action for failure to pay the filing fees required by 28 U.S.C. § 1914(a) and/or failure to
24 properly move to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a), Plaintiff filed
25 a motion to proceed in forma pauperis (“IFP”). (Doc. Nos. 3–4.)
26 I. Motion to Proceed IFP
27 All parties instituting any civil action, suit or proceeding in a district court of the
28 United States, except an application for writ of habeas corpus, must pay a filing fee of
1 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55,
2 although the administrative fee does not apply to persons granted leave to proceed IFP.
3 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee
4 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to
5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
6 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A prisoner
7 seeking leave to proceed IFP must submit a “certified copy of the trust fund account
8 statement (or institutional equivalent) for . . . the 6-month period immediately preceding
9 the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119
10 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial
11 payment of 20% of (a) the average monthly deposits in the account for the past six months,
12 or (b) the average monthly balance in the account for the past six months, whichever is
13 greater, unless the prisoner has insufficient assets. See 28 U.S.C. § 1915(b)(1) & (4); Bruce
14 v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP must pay any remaining
15 balance in “increments” or “installments,” regardless of whether their action is ultimately
16 dismissed. 28 U.S.C. § 1915(b)(1)&(2); Bruce, 577 U.S. at 84.
17 In support of his IFP motion, Plaintiff has submitted a copy of his California
18 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report and
19 Prison Certificate attested to by a CDCR trust account official. (Doc. No. 4 at 4.) The
20 document shows he had an average monthly balance of $59.06 and average monthly
21 deposits of $49.84, with an available balance of $10.00. Id. Therefore, the Court GRANTS
22 Plaintiff’s motion to proceed IFP and assesses an initial partial filing fee of $11.81, but the
23 initial fee need be collected only if sufficient funds are available in Plaintiff’s account at
24 the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event
25 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or
26 criminal judgment for the reason that the prisoner has no assets and no means by which to
27 pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C.
28 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based
1 solely on a “failure to pay . . . due to the lack of funds available to him when payment is
2 ordered.”) Plaintiff is required to pay the balance of the $350 filing fee required by 28
3 U.S.C. § 1914 pursuant to the installment payment provisions of 28 U.S.C. § 1915(b)(1).
4 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
5 A. Standard of Review
6 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-
7 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua
8 sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous,
9 malicious, fails to state a claim, or seeks damages from defendants who are immune. Lopez
10 v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2));
11 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)).
12 “The standard for determining whether a plaintiff has failed to state a claim upon
13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
15 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
16 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the
17 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule
18 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state
19 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
20 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether
21 a complaint states a plausible claim for relief [is] . . . a context-specific task that requires
22 the reviewing court to draw on its judicial experience and common sense.” Id.
23 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,
24 acting under color of state law, violate federal constitutional or statutory rights.” Devereaux
25 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of
26 substantive rights, but merely provides a method for vindicating federal rights elsewhere
27 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quote marks
28 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right
1 secured by the Constitution and laws of the United States, and (2) that the deprivation was
2 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698
3 F.3d 1128, 1138 (9th Cir. 2012).
4 B. Allegations in the Complaint
5 Plaintiff alleges that on July 27, 2022, Defendant Patricio “made a racially
6 discriminatory remark” when he told Plaintiff to go to work “by stating it’s ‘chicken on the
7 bone’ insinuating Black people love chicken,” and Defendant Valencia subsequently
8 repeated Patricio’s statement over the public announcement system. (Doc. No. 1 at 4.)
9 Plaintiff alleges the statement was “racially discriminatory and embarrassing and hurtful”
10 and caused him “mental anguish & emotional distress” given he was already suffering from
11 PTSD, anguish and distress from a prior beating he suffered at the hands of correctional
12 officers. (Id.) Plaintiff alleges this incident also “exacerbated those already serious mental
13 health issues under the Americans with Disabilities Act because he was already a protected
14 member under ADA.” (Id. at 5.) Plaintiff “believes and alleges here that this incident was
15 retaliatory in nature stemming from prior grievances and legal actions filed against CDCR”
16 and notes “CDCR sustained the incident in its administrative investigation but failed to
17 take meaningful corrective action.” (Id. at 7.)
18 Plaintiff alleges violations of due process and equal protection under the Fourteenth
19 Amendment, cruel and unusual punishment under the Eighth Amendment, retaliation under
20 the First Amendment and ADA violations under Title II. (Id. at 3, 8.) Plaintiff also alleges
21 Defendants violated the Bane Act. (Id. at 8.) Plaintiff seeks to proceed against Defendants
22 Patricio and Valencia in their individual and official capacities and against Defendant
23 CDCR in its official capacity. (See id. at 2–3.) Plaintiff seeks monetary damages,
24 declaratory relief acknowledging the Defendants’ violation of his rights, and injunctive
25 relief “mandating that CDCR implement anti-retaliation training and monitor racial
26 harassment & provide mental support when these things occur.” (Id. at 5.)
27 ///
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1 C. Discussion
2 As an initial matter, Plaintiff may not proceed against Defendant CDCR on his First,
3 Eighth, and Fourteenth Amendment claims because CDCR is not a “person” subject to suit
4 under § 1983. See Devereaux, 263 F.3d at 1074 (Title 42 U.S.C. § 1983 “creates a private
5 right of action against individuals who, acting under color of state law, violate federal
6 constitutional or statutory rights.”); see Will v. Michigan Dept. of State Police, 491 U.S.
7 58, 71 (1989) (“[N]either a State nor its officials acting in their official capacities are
8 ‘persons’ under § 1983.”); see also Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir. 2004)
9 (“State agencies . . . are not ‘persons’ within the meaning of § 1983, and are therefore not
10 amenable to suit under that statute.”) (citing Will, 491 U.S. at 70).
11 Nor may Plaintiff proceed with a claim for damages against CDCR or any of the
12 Defendants in their “official capacity” because such claims are barred under the Eleventh
13 Amendment. Absent “a waiver by the state or a valid congressional override,” Dittman v.
14 California, 191 F.3d 1020, 1025 (9th Cir. 1999), “[t]he Eleventh Amendment bars suits for
15 money damages in federal court against a state, its agencies, and state officials acting in
16 their official capacities.” Aholelei v. Department of Public Safety, 488 F.3d 1144, 1147
17 (9th Cir. 2007). “The State of California has not waived its Eleventh Amendment immunity
18 with respect to claims brought under § 1983 in federal court.” Dittman, 191 F.3d at 1025–
19 26; see Alabama v. Pugh, 438 U.S. 781, 782 (1978) (“There can be no doubt, however, that
20 suit against the State and its Board of Corrections is barred by the Eleventh Amendment,
21 unless [the State] has consented to the filing of such a suit.”) Accordingly, the Court
22 dismisses CDCR as a Defendant with respect to Plaintiff’s First, Eighth, and Fourteenth
23 Amendment claims for damages. The Court also dismisses all three Defendants to the
24 extent Plaintiff seeks damages from them in their official capacities, with the exception of
25 the ADA claim discussed in more detail below. The Court will proceed to consider
26 Plaintiff’s remaining claims against the named Defendants.
27 1. Fourteenth Amendment Due Process and Equal Protection
28 Plaintiff alleges Defendants Patricio and Valencia intentionally discriminated
1 against him based on race in violation of his Fourteenth Amendment rights to due process
2 and equal protection. (Doc. No. 1 at 3–5, 7–8.)
3 The Due Process Clause of the Fourteenth Amendment prohibits states from
4 “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S.
5 Const. amend. XIV, § 1. Liberty interests protected by the Due Process Clause for
6 incarcerated persons “will be generally limited to freedom from restraint which, while not
7 exceeding the sentence in such an unexpected manner as to give rise to protection by the
8 Due Process Clause of its own force, nonetheless imposes atypical and significant hardship
9 on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515
10 U.S. 472, 484 (1995). Meanwhile, “[t]he Equal Protection Clause of the Fourteenth
11 Amendment commands that no State shall ‘deny to any person within its jurisdiction the
12 equal protection of the laws,’ which is essentially a direction that all persons similarly
13 situated should be treated alike.” City of Cleburne, Tex. v. Cleburne Living Center, 473
14 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). “To state a claim
15 for violation of the Equal Protection Clause, a plaintiff must show that the defendant acted
16 with an intent or purpose to discriminate against him based upon his membership in a
17 protected class.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (citation
18 omitted).
19 Plaintiff first fails to state facts which plausibly allege he was deprived of a protected
20 liberty interest and instead only offers a vague and conclusory assertion that his due process
21 rights were violated. (See Doc. No. 1 at 3.) To the extent Plaintiff’s contention appears to
22 be based solely on the Defendants’ verbal remarks, he fails to state a Fourteenth
23 Amendment due process violation, as “courts have held that verbal harassment, including
24 abuse or threats, without more, is not cognizable under a § 1983 claim based on the
25 Fourteenth Amendment.” Thomas v. Gore, 2019 WL 927771, at *5 (S.D. Cal. Feb. 27,
26 2019) (collecting cases); see also generally Sandin, 515 U.S. at 480 (“The Due Process
27 Clause standing alone confers no liberty interest in freedom from state action taken ‘within
28 the sentence imposed.’”) (additional citations and quote marks omitted).
1 Nor do Plaintiff’s allegations plausibly state an equal protection claim under the
2 Fourteenth Amendment. Plaintiff does set forth facts alleging membership in a protected
3 class, as he asserts Defendants’ comments were made because of his race. (See Doc. No. 1
4 at 4); see e.g., Fields v. Legacy Health System, 413 F.3d 943, 955 (9th Cir. 2005) (noting
5 that “race, alienage, national origin, or sex” are examples of “protected characteristics” for
6 purposes of equal protection review). However, Plaintiff fails to allege any facts plausibly
7 connecting the asserted statements to any discriminatory conduct or action by any
8 Defendant. In order for Plaintiff to state an equal protection claim under section 1983, he
9 must show that a Defendant “acted with an intent or purpose to discriminate against him
10 based upon his membership in a protected class.” Serrano, 345 F.3d at 1082 (citation
11 omitted) (emphasis added). Plaintiff’s Complaint fails to allege that any Defendant took
12 action to discriminate against him based on race and again, “verbal harassment, including
13 abuse or threats, without more, is not cognizable under a § 1983 claim based on the
14 Fourteenth Amendment.” Thomas, 2019 WL 927771, at *5 (collecting cases).
15 Accordingly, Plaintiff’s Fourteenth Amendment due process and equal protection
16 claim is dismissed sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure
17 to state a claim.
18 2. Eighth Amendment Claim
19 While Plaintiff indicates he alleges an Eighth Amendment claim (see Doc. No. 1 at
20 3), he does not appear to specifically articulate or allege how Defendant Patricio’s and/or
21 Valencia’s actions constituted cruel and unusual punishment. Instead, Plaintiff appears to
22 only generally contend that “Defendants[’] actions were outrageous and intended to cause
23 emotional harm, resulting in severe distress.” (Id. at 8.) To the extent Plaintiff asserts the
24 Defendants’ actions in making the contested remarks, which Plaintiff claims “caus[ed]
25 emotional distress and psychological harm” (id. at 7), were violative of the Eighth
26 Amendment, Plaintiff fails to state a claim.
27 “[A] prison official violates the Eighth Amendment when two requirements are met.
28 First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v.
1 Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
2 Second, Plaintiff must allege the prison official had a “sufficiently culpable state of mind,”
3 that is, “one of ‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson,
4 501 U.S. at 302–03). A prison official must “know[] of and disregard[] an excessive risk
5 to inmate health or safety; the official must both be aware of facts from which the inference
6 could be drawn that a substantial risk of serious harm exists, and he must also draw the
7 inference.” Id. at 837.
8 Plaintiff’s allegations are insufficient to state an Eighth Amendment violation
9 because he fails to plausibly allege a deprivation that was “objectively, ‘sufficiently
10 serious,’” or that either Defendant had a “sufficiently culpable state of mind.” Id. at 834
11 (quoting Wilson, 501 U.S. at 298). Nor does Plaintiff set forth any facts plausibly alleging
12 that he suffered a sufficiently serious physical injury due to a Defendant’s deliberate
13 indifference to the substantial or excessive risk of serious harm. See Oliver v. Keller, 289
14 F.3d 623, 627 (9th Cir. 2002) (holding that the PLRA “requires a prior showing of physical
15 injury that need not be significant but must be more than de minimis.”); see also Goode v.
16 Canedo, S.D. Cal. Case No. 21-cv-2054-GPC-KSC, 2022 WL 16753312, at *6 (S.D. Cal.
17 Nov. 7, 2022) (“The threshold of physical injury necessary is not specified in the PLRA,
18 but courts have interpreted this to require physical injury more than de minimis.”) (citing
19 Oliver, 289 F.3d at 628 (9th Cir. 2002)). Plaintiff instead alleges Defendants’ verbal
20 remarks caused “emotional distress and psychological harm,” (Doc. No. 1 at 7), which do
21 not suffice to state a claim. See Oliver, 289 F.3d at 627; see also Watison, 668 F.3d at 1113
22 (“‘[T]he exchange of verbal insults between inmates and guards is a constant, daily ritual
23 observed in this nation’s prisons’ of which ‘we do not approve,’ but which do not violate
24 the Eighth Amendment.”) (quoting Somers v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997)).
25 Accordingly, Plaintiff’s Eighth Amendment claim is dismissed sua sponte pursuant
26 to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim.
27 3. First Amendment Retaliation Claim
28 Plaintiff alleges Defendants Patricio and Valencia “retaliated against Plaintiff for
1 exercising his right to file grievances of redress to the courts, violating his First
2 Amendment rights because their (CDCR’s) abuse continued, after previous incidents.”
3 (Doc. No. 1 at 8.) Plaintiff states that he “believes and alleges here that this incident was
4 retaliatory in nature stemming from prior grievances and legal actions filed against
5 CDCR.” (Id. at 7.)
6 “Prisoners have a First Amendment right to file grievances against prison officials
7 and to be free from retaliation for doing so.” Watison, 668 F.3d at 1114. “Within the prison
8 context, a viable claim of First Amendment retaliation entails five basic elements: (1) An
9 assertion that a state actor took some adverse action against an inmate (2) because of (3)
10 that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of
11 his First Amendment rights, and (5) the action did not reasonably advance a legitimate
12 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (2005).
13 Here, Plaintiff’s allegations of verbal harassment again do not suffice to state a claim
14 cognizable under 42 U.S.C. § 1983. See e.g. Oltarzewski v. Ruggiero, 830 F.2d 136, 139
15 (9th Cir. 1987) (“‘Verbal harassment or abuse . . . is not sufficient to state a constitutional
16 deprivation under 42 U.S.C. § 1983.’”) (quoting Collins v. Cundy, 603 F.2d 825, 827 (10th
17 Cir. 1979)). Moreover, while Plaintiff indicates he “believes and alleges” that Defendants’
18 comments were retaliatory, he also fails to state any facts which plausibly allege that the
19 Defendants were both aware of his prior grievances and/or legal actions and that any
20 Defendant took an adverse action against Plaintiff because of his exercise of that protected
21 conduct. See Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (“[M]ere speculation that
22 defendants acted out of retaliation is not sufficient.”); Iqbal, 556 U.S. at 678 (“Threadbare
23 recitals of the elements of a cause of action, supported by mere conclusory statements, do
24 not suffice.”); see e.g., Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.
25 1989) (“[A] plaintiff alleging retaliation for the exercise of constitutionally protected rights
26 must initially show that the protected conduct was a ‘substantial’ or ‘motivating’ factor in
27 the defendant’s decision.”) (quoting Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,
28 429 U.S. 274, 287 (1977)). If Plaintiff wishes to proceed with a 42 U.S.C. § 1983 claim
1 based on retaliation, he must set forth facts which plausibly allege a Defendant took an
2 adverse action because of his protected conduct which chilled his exercise of his First
3 Amendment rights and which did not reasonably advance a legitimate correctional goal.
4 Rhodes, 408 F.3d at 567–68.
5 Accordingly, Plaintiff’s First Amendment retaliation claim is dismissed sua sponte
6 pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim.
7 4. ADA Claim
8 Plaintiff next asserts a violation of the ADA. (Doc. No. 1 at 3, 5, 7–8.) First, to the
9 extent he seeks to proceed against all three named Defendants, Plaintiff may not pursue an
10 ADA claim against either Defendants Patricio or Valencia in their individual capacities,
11 only in their official capacities. See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002)
12 (“[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official in
13 [their] individual capacity to vindicate rights created by Title II of the ADA . . .”); see also
14 Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (“The ADA applies only to public
15 entities . . .”); Miranda B. v. Kitzhaber, 328 F.3d 1181, 1188 (“Title II’s statutory language
16 does not prohibit [] injunctive action against state officials in their official capacities.”).
17 Plaintiff may pursue an ADA claim for damages against CDCR. See United States
18 v. Georgia, 546 U.S. 151, 154 (2006) (“Title II [of the ADA] authorizes suits by private
19 citizens for money damages against public entities that violate § 12132.”) (additional
20 citations omitted). To state a claim under the ADA, however, Plaintiff must allege:
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(1) he ‘is an individual with a disability;’ (2) he ‘is otherwise qualified to
22 participate in or receive the benefit of some public entity’s services, programs,
or activities;’ (3) he ‘was either excluded from participation in or denied the
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benefits of the public entity’s services, programs, or activities, or was
24 otherwise discriminated against by the public entity;’ and (4) ‘such exclusion,
denial of benefits, or discrimination was by reason of (his) disability.’
25
26 O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007) (citations
27 omitted).
28 Here, Plaintiff generally alleges that “[t]his incident exacerbated those already
1 serious mental health issues under the Americans with Disabilities Act because he was
2 already a protected member under ADA” and “CDCR failed to provide reasonable
3 accommodations after the incident in violation of ADA rules of an already protected
4 individual under the ADA.” (Doc. No. 1 at 5, 8.) Even assuming without deciding that
5 Plaintiff’s assertion he suffers from PTSD and other mental health issues (see e.g., id. at 5)
6 is sufficient to plausibly allege he is an individual with a disability under the first element,
7 Plaintiff nonetheless does not satisfy the remainder of the requisite elements, as he offers
8 only a vague and conclusory contention that CDCR “failed to provide reasonable
9 accommodations after the incident.” (Id. at 8.) Thus, Plaintiff’s ADA claim fails because
10 he does not offer facts plausibly alleging what, if any, accommodations were not provided,
11 nor does he allege that the CDCR’s failure to provide any such accommodations was done
12 “by reason of” his disability. O’Guinn, 502 F.3d at 1060.
13 Accordingly, Plaintiff’s ADA claim is dismissed sua sponte pursuant to 28 U.S.C.
14 §§ 1915(e)(2) & 1915A(b) for failure to state a claim.
15 5. Bane Act
16 Plaintiff also raises a state law claim, alleging a violation of the Bane Act, Cal. Civ.
17 Code § 52.1 arising from the Defendants’ “interfering with Plaintiff’s constitutional rights
18 through intimidation and racial harassment.” (Doc. No. 1 at 8.) “[I]n any civil action of
19 which the district courts have original jurisdiction, the district courts shall have
20 supplemental jurisdiction over all other claims that are so related to claims in the action
21 within such original jurisdiction that they form part of the same case or controversy under
22 Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Yet here, because the
23 Court has dismissed all of Plaintiff’s federal claims from the instant civil action, the Court
24 declines to exercise supplemental jurisdiction over this state law claim. See 28 U.S.C.
25 § 1367(c) (“The district courts may decline to exercise supplemental jurisdiction over a
26 claim under subsection (a) if– . . . (3) the district court has dismissed all claims over which
27 it has original jurisdiction . . .”).
28 The Court further notes that “[t]he elements of a Bane Act claim are essentially
1 identical to the elements of a § 1983 claim, with the added requirement that the government
2 official had a ‘specific intent to violate’ a constitutional right.” Hughes v. Rodriguez, 31
3 F.4th 1211, 1224 (9th Cir. 2022) (quoting Reese v. County of Sacramento, 888 F.3d 1030,
4 1043 (9th Cir. 2018)). In addition, to state a Bane Act claim against a public entity or
5 employee, a plaintiff must first comply with California’s Government Claims Act
6 (“CGCA”) presentation requirement. See State of Calif. v. Super. Court (“Bodde”), 32 Cal.
7 4th 1234, 1239 (Cal. 2004) (citing Cal. Gov’t § 900, et seq.). To do so, a plaintiff must
8 specifically allege compliance with the CGCA in their pleading. See id. at 1237, 1240.
9 Here, even if the Court were inclined to exercise supplemental jurisdiction, because
10 the requisite elements of a Bane Act claim are “essentially identical” to those of a § 1983
11 claim, as currently pleaded, Plaintiff does not state a claim for relief under the Bane Act
12 given he has failed to state a claim for relief as to any of his § 1983 claims. See Hughes,
13 31 F.4th at 1224. Furthermore, it does not appear that Plaintiff has alleged either facts
14 showing compliance with the CGCA or facts that would excuse compliance, as necessary
15 to state a Bane Act claim in federal court. See Bodde, 32 Cal. 4th at 1239 (“[F]ailure to
16 allege facts demonstrating or excusing compliance with the claim presentation requirement
17 subjects a claim against a public entity to a demurrer for failure to state a cause of action.”);
18 see e.g., Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988)
19 (“Karim–Panahi’s pendent state law tort claims against both the individual and public
20 entity defendants are barred unless he presented them to the City and the LAPD before
21 commencing suit.”); Mangold v. California Public Utilities Comm’n, 67 F.3d 1470, 1477
22 (9th Cir. 1995).
23 D. Leave to Amend
24 In light of Plaintiff’s pro se status, the Court grants him leave to amend to attempt
25 to sufficiently allege a claim if he can. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th
26 Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to amend
27 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless it is absolutely clear that the deficiencies
28 of the complaint could not be cured by amendment.”) (internal quote marks omitted).
1 III. Conclusion and Orders
2 Accordingly, good cause appearing, the Court:
3 1) GRANTS Plaintiff’s Motion to Proceed IFP (Doc. No. 4).
4 2) DIRECTS the Secretary of the CDCR, or his designee, to collect from
5 Plaintiff’s trust account the $11.81 initial filing fee assessed, if those funds are available
6 at the time this order is executed, and forward whatever balance remains of the $350 owed
7 in monthly payments in an amount equal to twenty (20%) percent of the preceding month’s
8 income to the Clerk of the Court each time the amount in Plaintiff’s account exceeds $10.00
9 pursuant to 28 U.S.C. § 1915(b)(2).
10 3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail
11 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation,
12 P.O. Box 942883, Sacramento, California, 94283-0001.
13 4) DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim
14 upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) &
15 1915A(b)(1).
16 5) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in
17 which to file an Amended Complaint which cures all the deficiencies of pleading noted.
18 Plaintiff’s Amended Complaint must be complete by itself without reference to his original
19 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint
20 will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard
21 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading
22 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)
23 (claims which are not re-alleged in an amended pleading may be “considered waived if not
24 repled.”).
25 If Plaintiff fails to file an Amended Complaint within the time provided, the Court
26 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state
27 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) &
28 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring
1 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does
2 ||not take advantage of the opportunity to fix his complaint, a district court may convert the
3 || dismissal of the complaint into dismissal of the entire action.’’).
4 IT IS SO ORDERED.
5 || Dated: March 26, 2026
7 United States District Judge
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14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14