CDCR

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 TREVON R. KIRKLAND, No. 2:26-cv-1593 CSK P

12 Plaintiff, ORDER

13 v.

14 CDCR, et al.,

15 Defendants.

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17 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

18 § 1983 and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

19 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

20 Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a).

21 Accordingly, the request to proceed in forma pauperis is granted.

22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.

23 §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in

24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

26 forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments

27 of twenty percent of the preceding month’s income credited to plaintiff’s trust account. These

28 payments will be forwarded by the appropriate agency to the Clerk of the Court each time the

1 amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

2 § 1915(b)(2).

3 As discussed below, plaintiff’s complaint is dismissed with leave to amend.

4 I. SCREENING STANDARDS

5 The court is required to screen complaints brought by prisoners seeking relief against a

6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

7 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally

8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

10 A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

11 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

12 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an

13 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

14 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

15 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

16 Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

17 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably

18 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin, 745 F.2d at

19 1227.

20 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

21 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

22 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

23 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

24 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a

25 formulaic recitation of the elements of a cause of action;” it must contain factual allegations

26 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.

27 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the

28 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.

1 Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal

2 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as

3 true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the

4 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236

5 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

6 II. THE CIVIL RIGHTS ACT

7 To state a claim under § 1983, a plaintiff must demonstrate: (1) the violation of a federal

8 constitutional or statutory right; and (2) that the violation was committed by a person acting under

9 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d

10 930, 934 (9th Cir. 2002). An individual defendant is not liable on a civil rights claim unless the

11 facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

12 connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

13 See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

14 (9th Cir. 1978). That is, plaintiff may not sue any official on the theory that the official is liable

15 for the unconstitutional conduct of his or her subordinates. Ashcroft v. Iqbal, 556 U.S. 662, 679

16 (2009). The requisite causal connection between a supervisor’s wrongful conduct and the

17 violation of the prisoner’s constitutional rights can be established in a number of ways, including

18 by demonstrating that a supervisor’s own culpable action or inaction in the training, supervision,

19 or control of his subordinates was a cause of plaintiff’s injury. Starr v. Baca, 652 F.3d 1202,

20 1208 (9th Cir. 2011).

21 III. PLAINTIFF’S COMPLAINT

22 In his first claim, marked “threat to safety,” plaintiff alleges he was put through sexual

23 assaults, harassment, and installations of “illegal mechanical uses inside and on [his] body using

24 technology instead of doing investigation work.” (ECF No. 1 at 3.) Plaintiff claims “they started

25 to retaliate against” plaintiff by stealing his property, and prison officials “allow[ed] inmates to be

26 subjected to experiments using technology.” (Id.) Plaintiff claims such efforts were made to get

27 him to kill himself by “continuous yelling in [his] ears,” and resulted in psychological and

28 emotional distress. (Id.)

1 In his second claim, marked “retaliation,” plaintiff alleges unidentified CDCR employees

2 retaliated against plaintiff by paying inmates to batter and stab plaintiff, steal his property, and

3 falsely identify plaintiff as a child molester to get inmates to stab him. (Id. at 4.)

4 In his third claim, marked “disciplinary proceedings,” plaintiff alleges the CDCR violated

5 his right to due process by failing to investigate claims in his grievances and failing to respond in

6 a timely manner. (Id. at 5.) As a result, plaintiff suffered emotional distress. (Id.)

7 IV. DISCUSSION

8 A. Plaintiff’s First Claim

9 Plaintiff’s first claim is too vague and conclusory for the Court to determine whether

10 plaintiff can state a viable threat to safety claim.

11 Generally, allegations of harassment, embarrassment, and defamation are not cognizable

12 under section 1983. Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1353 (9th Cir. 1981),

13 aff’d sub nom. Kush v. Rutledge, 460 U.S. 719 (1983); see also Franklin v. Oregon, 662 F.2d

14 1337, 1344 (9th Cir.1982) (allegations of harassment with regards to medical problems not

15 cognizable); Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir. 1975) (Arkansas state prisoner

16 does not have cause of action under § 1983 for being called obscene name by prison employee);

17 Batton v. North Carolina, 501 F. Supp. 1173, 1180 (E.D. N.C. 1980) (mere verbal abuse by

18 prison officials does not state claim under § 1983). Nor are allegations of mere threats

19 cognizable. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does not constitute

20 constitutional wrong, nor do allegations that naked threat was for purpose of denying access to

21 courts compel contrary result).

22 Plaintiff’s allegations of sexual assault or abuse are too vague and conclusory to determine

23 whether they state a cognizable claim. A pro se complaint must contain more than “naked

24 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

25 action.” Bell Atlantic, 550 U.S. at 555-57. “Threadbare recitals of the elements of a cause of

26 action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678.

27 Furthermore, a claim upon which the court can grant relief must have facial plausibility. Bell

28 Atlantic, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

1 content that allows the court to draw the reasonable inference that the defendant is liable for the

2 misconduct alleged.” Iqbal, 556 U.S. at 663. Plaintiff’s first claim should be dismissed.

3 B. Plaintiff’s Second Claim

4 “Prisoners have a First Amendment right to file grievances against prison officials and to

5 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012)

6 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A viable retaliation claim in the

7 prison context has five elements: “(1) An assertion that a state actor took some adverse action

8 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action

9 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not

10 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68

11 (9th Cir. 2005).

12 Plaintiff’s complaint fails to address every element of a retaliation claim as required under

13 Rhodes. Specifically, plaintiff does not identify his conduct protected by the First Amendment.

14 If plaintiff amends his complaint to pursue a retaliation claim, plaintiff must identify the

15 responsible party, and then allege specific facts as to each of the five elements set forth in

16 Rhodes.

17 C. Plaintiff’s Third Claim

18 The Due Process Clause protects plaintiff against the deprivation of liberty without due

19 process under the law. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). However, there is no

20 stand-alone due process claim for the prison grievance process itself. Ramirez v. Galaza, 334

21 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). A prison

22 official’s denial of a grievance does not itself violate the constitution. Evans v. Skolnik, 637 F.

23 App’x 285, 288 (9th Cir. 2015). Thus, the denial or failure to properly process plaintiff’s

24 grievances cannot constitute a due process violation. See, e.g., Bradway v. Rao, 2020 WL

25 8919180, at *1 (E.D. Cal. July 15, 2020); Daniels v. Aguillera, 2018 WL 558658, at *1 (E.D. Cal.

26 Jan. 24, 2018), report and recommendation adopted, Daniels v. Aguillera, 2018 WL 1763311

27 (E.D. Cal. Apr. 12, 2018) (“Because there is no right to any particular grievance process, it is

28 impossible for due process to have been violated by ignoring or failing to properly process prison

1 grievances.”); Wright v. Shannon, 2010 WL 445203, at *5 (E.D. Cal. 2010).

2 Because plaintiff cannot state a cognizable due process claim based on the handling of his

3 grievances, plaintiff should not renew this claim in any amended complaint.

4 D. Improper Defendant

5 In his complaint plaintiff has named the CDCR as one of the defendants. The Eleventh

6 Amendment serves as a jurisdictional bar to suits brought by private parties against a state or state

7 agency unless the state or the agency consents to such suit. See Quern v. Jordan, 440 U.S. 332

8 (1979); Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam); Jackson v. Hayakawa, 682 F.2d

9 1344, 1349-50 (9th Cir. 1982). In the instant case, the State of California has not consented to

10 suit. Accordingly, plaintiff's claims against the CDCR are frivolous and must be dismissed.

11 E. No Charging Allegations

12 Finally, plaintiff names Governor Gavin Newsom, Warden Jason Schultz and Warden

13 Vang as defendants. However, plaintiff provides no charging allegations as to any of these

14 defendants. Moreover, in the defendants’ section of the complaint, plaintiff claims Governor

15 Newsom “overlooks CDCR.” (ECF No. 1 at 2.) However, as set forth above, plaintiff may not

16 name an individual as a defendant based solely on his or her supervisory duties or the

17 unconstitutional conduct of his or her subordinates. Iqbal, 556 U.S. at 679. Plaintiff must allege

18 facts showing a causal connection between a supervisor’s wrongful conduct and the violation of

19 his constitutional rights, for example, by demonstrating that a supervisor’s own culpable action or

20 inaction in the training, supervision, or control of his subordinates was a cause of plaintiff’s

21 injury. Starr, 652 F.3d at 1208.

22 V. LEAVE TO AMEND

23 The court finds the allegations in plaintiff’s complaint so vague and conclusory that it is

24 unable to determine whether the current action is frivolous or fails to state a claim for relief. The

25 court determines that the complaint does not contain a short and plain statement as required by

26 Fed. R. Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint

27 must give fair notice and state the elements of the claim plainly and succinctly. Jones v. Cmty.

28 Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some

1 degree of particularity overt acts which defendants engaged in that support plaintiff's claim. Id.

2 Because plaintiff failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the complaint

3 must be dismissed. However, the court grants plaintiff leave to file an amended complaint.

4 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

5 about which he complains resulted in a deprivation of plaintiff’s constitutional rights. See e.g.,

6 West, 487 U.S. at 48. Also, the complaint must allege in specific terms how each named

7 defendant is involved. Rizzo v. Goode, 423 U.S. 362, 371 (1976). There can be no liability

8 under 42 U.S.C. § 1983 unless there is some affirmative link or connection between a defendant’s

9 actions and the claimed deprivation. Rizzo, 423 U.S. at 371; May v. Enomoto, 633 F.2d 164, 167

10 (9th Cir. 1980). Furthermore, vague and conclusory allegations of official participation in civil

11 rights violations are not sufficient. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

12 In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

13 make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

14 complaint be complete in itself without reference to any prior pleading. This requirement exists

15 because, as a general rule, an amended complaint supersedes the original complaint. See Ramirez

16 v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“an ‘amended complaint

17 supersedes the original, the latter being treated thereafter as non-existent.’” (internal citation

18 omitted)). Once plaintiff files an amended complaint, the original pleading no longer serves any

19 function in the case. Therefore, in an amended complaint, as in an original complaint, each claim

20 and the involvement of each defendant must be sufficiently alleged.

21 VI. CONCLUSION

22 In accordance with the above, IT IS HEREBY ORDERED that:

23 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

24 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff

25 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C.

26 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

27 Director of the California Department of Corrections and Rehabilitation filed concurrently

28 herewith.

1 3. Plaintiff's complaint is dismissed.

2 4. Within thirty days from the date of this order, plaintiff shall complete the attached

3 || Notice of Amendment and submit the following documents to the court:

4 a. The completed Notice of Amendment; and

5 b. An original of the Amended Complaint.

6 || Plaintiff's amended complaint shall comply with the requirements of the Civil Rights Act, the

7 || Federal Rules of Civil Procedure, and the Local Rules of Practice. The amended complaint must

8 | also bear the docket number assigned to this case and must be labeled “Amended Complaint.”

9 | Failure to file an amended complaint in accordance with this order may result in the dismissal of

10 || this action.

1]

12 || Dated: August 12, 2026 4

13 \ Am spe \

CHI SOO KIM

14 UNITED STATES MAGISTRATE JUDGE

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7 UNITED STATES DISTRICT COURT

8 FOR THE EASTERN DISTRICT OF CALIFORNIA

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TREVON R. KIRKLAND, No. 2:26-cv-1593 CSK P

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Plaintiff,

11 NOTICE OF AMENDMENT

v.

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CDCR, et al.,

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Defendants.

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15 Plaintiff submits the following document in compliance with the court’s order

16 filed on ______________ (date).

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18 Amended Complaint

19 (Check this box if submitting an Amended Complaint)

20 DATED:

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21 Plaintiff

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