Arrant v. Zambrano ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MELVIN RAY ARRANT, Case No.: 3:20-cv-01220 JLS-AGS CDCR #K98602, 12 ORDER: (1) GRANTING MOTION Plaintiff, 13 TO PROCEED IN FORMA vs. PAUPERIS; (2) DISMISSING 14 COMPLAINT FOR FAILING TO M. ZAMBRANO, HAYES, 15 STATE A CLAIM PURSUANT TO DELLINGER, ASFOUR, S. BEYER, 28 U.S.C. § 1915(e)(2) & 28 U.S.C. 16 Defendants. § 1915A(b); AND (3) DENYING 17 MOTION FOR TEMPORARY RESTRAINING ORDER 18 19 (ECF Nos. 2, 3) 20 21 22 Plaintiff Melvin Ray Arrant, currently incarcerated at Richard J. Donovan State 23 Prison (“RJD”) located in San Diego, California, and proceeding pro se, has filed a civil 24 rights complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff did not 25 prepay the civil filing fee required by 28 U.S.C. § 1914(a), but he did file a Motion to 26 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2.) 27 Plaintiff has also filed a Motion for a Temporary Restraining Order (“TRO”). (See ECF 28 No. 3.) 1 I. Motion to Proceed In Forma Pauperis 2 All parties instituting any civil action, suit, or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $400.1 See 28 U.S.C. § 1914(a). 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). However, 7 prisoners who are granted leave to proceed IFP remain obligated to pay the entire fee in 8 “increments” or “installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. 9 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether their action is 10 ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 11 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) also requires prisoners seeking leave to proceed IFP to submit a 13 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 14 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 15 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 16 trust account statement, the Court assesses an initial payment of 20% of (a) the average 17 monthly deposits in the account for the past six months, or (b) the average monthly balance 18 in the account for the past six months, whichever is greater, unless the prisoner has no 19 assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody 20 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 21 month’s income, in any month in which his account exceeds $10, and forwards those 22 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 23 136 S. Ct. at 629. 24 /// 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. June 1, 2016)). The additional $50 administrative fee does not apply to persons granted leave to proceed 28 1 In support of his IFP Motion, Plaintiff has submitted a copy of his California 2 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report as well 3 as a Prison Certificate completed by an RJD accounting officer. See ECF Nos. 2 at 4–6; 4 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These statements 5 show that Plaintiff has carried an average monthly balance of $0.00, had $0.00 in average 6 monthly deposits to his account over the 6-month period immediately preceding the filing 7 of his Complaint, and had an available balance of $0.00 on the books at the time of filing. 8 (See ECF No. 2 at 4–6.) Based on this accounting, the Court GRANTS Plaintiff’s Motion 9 to Proceed IFP (ECF No. 3) and will not assess an initial partial filing fee pursuant to 28 10 U.S.C. § 1915(b)(1). The remaining balance of the $350 total fee owed in this case must 11 be collected by the agency having custody of the prisoner and forwarded to the Clerk of 12 the Court pursuant to 28 U.S.C. § 1915(b)(2). 13 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 14 A. Legal Standard 15 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint also requires a 16 pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 17 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, 18 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who 19 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 20 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 21 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 22 the targets of frivolous or malicious suits need not bear the expense of responding.’” 23 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 24 “The standard for determining whether a plaintiff has failed to state a claim upon 25 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 26 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 27 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 28 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 1 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 2 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 3 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 4 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 5 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 6 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 7 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 8 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 9 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 10 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 11 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 12 B. Plaintiff’s Factual Allegations2 13 Plaintiff alleges that he has been requesting a bed or cell move since December of 14 2019. (Compl. at 4.) Each time, Plaintiff was told he had to wait until a weekend “because 15 that is when convenient bed moves are done.” Id. Plaintiff claims that he observed other 16 inmates, who he claims are gay, bisexual, or are informants, have their requests for bed 17 moves granted while his request has been ignored. Id. Plaintiff, believing he was being 18 discriminated against, filed a CDCR form 22 on February 26, 2020. Id. In response, 19 Defendant Zambrano told Plaintiff he “had to fill out unnecessary outdated paperwork” in 20 order to receive a bed move, while at the same time moving another inmate from one cell 21 to another without such paperwork.” Id. Plaintiff then filed a CDCR form 602. Id. When 22 Defendant Zambrano became aware of this, he told Plaintiff that “a 602 ain’t shit,” and that 23 “legal [beagles] ain’t got nothing coming.” Id. Zambrano also told Plaintiff that he wasn’t 24 the only one who knew how to write. Id. Zambrano then “generated a falsified RVR [rules 25 26 27 2 Plaintiff makes references to exhibits in his Complaint, but there are no exhibits attached to the Complaint. Plaintiff is advised that if he wants the Court to consider those documents, he must attach 28 1 violation report] against Plaintiff, accusing him of disrespecting staff by calling Zambrano 2 ‘Mark.’” Id. When the RVR was dismissed, Plaintiff filed another 602 alleging Zambrano 3 retaliated against him and that he was prevented from presenting evidence which would 4 have established his innocence. Id. 5 Plaintiff also alleges that on December 28, 2019, he saw a medical staff member, 6 Defendant Dellinger, cough on his hands, rub his nose, and then pass out medication to 7 inmates without changing his gloves. Id. at 5. When it was Plaintiff’s turn to receive 8 medication from Defendant Dellinger, Plaintiff told Dellinger he had seen him dispensing 9 medication after coughing on his hands and rubbing his nose. Id. Plaintiff asked Dellinger 10 to dispense his medication directly from the medication dispenser into a cup so that 11 Dellinger would not touch it with his hands. Id. Dellinger “became upset,” and told 12 Plaintiff “you don’t get special treatment.” Id. When Plaintiff asked for a correct spelling 13 of Dellinger’s name in order to submit a 602, Defendant Hayes told Plaintiff they would 14 not give him their names. Id. They then threatened to activate the building alarm “in 15 retaliation.” Id. When Plaintiff eventually did file a 602 regarding the incident, 16 “Supervisor Sanchez removed documents the Plaintiff submitted to her when she 17 interviewed the Plaintiff.” Id. 18 On March 5, 2020, Plaintiff asked Defendant Asfour, a recreational therapist, why a 19 PlayStation 3 videogame console had been removed from his Striving to Achieve Rewards 20 Enhanced Outpatient Program (“STAR EOP”) Group List. Id. at 6. From Plaintiff’s 21 description, the “group list” appears to be a list of recreational activities that are available 22 to STAR EOP inmates. Id. Asfour “gave a vague reason why, saying ‘it was voted off.’” 23 Id. Plaintiff pressed Asfour for a more specific reason, and Asfour told Plaintiff there was 24 nothing he could do about it. Id. When Plaintiff asked Asfour for the names of the staff 25 members who had voted to remove the PlayStation in order to file a 602, Asfour told 26 Plaintiff that if he filed a 602, “the gaming system will ‘never’ be put back on the list.” Id. 27 Asfour also referred Plaintiff’s request for the names of the staff members who 28 recommended the removal of the PlayStation from the STAR EOP Group List to Defendant 1 Beyer, who is Asfour’s supervisor. Id. at 7. Beyer responded that she was not able to give 2 Plaintiff the staff members’ names because they were confidential. Id. 3 C. 42 U.S.C. § 1983 4 “Section 1983 creates a private right of action against individuals who, acting under 5 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 6 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 7 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 8 Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks and citations 9 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a 10 right secured by the Constitution and laws of the United States, and (2) that the deprivation 11 was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 12 698 F.3d 1128, 1138 (9th Cir. 2012). 13 D. Equal Protection 14 Plaintiff alleges Defendant Zambrano discriminated against him, in violation of his 15 Fourteenth Amendment rights, when he denied Plaintiff bed/cell changes on numerous 16 occasions while granting such changes to inmates who are gay, bisexual, and informants. 17 (Compl. at 4.) 18 The Equal Protection Clause of the Fourteenth Amendment “is essentially a 19 direction that all persons similarly situated should be treated alike.” See City of Cleburne, 20 Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); see also Vacco v. Quill, 521 U.S. 21 793, 799, (1997) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982) and Tigner v. Texas, 310 22 U.S. 141, 147 (1940)); Fraley v. Bureau of Prisons, 1 F.3d 924, 926 (9th Cir. 1993) (per 23 curiam). To establish an equal protection violation, Plaintiff must demonstrate “that the 24 [challenged action], either on its face or in the manner of its enforcement, results in 25 members of a certain group being treated differently from other persons based on 26 membership in that group.” McLean v. Crabtree, 173 F.3d 1176, 1185 (9th Cir. 1999). 27 “Second, if it is demonstrated that a cognizable class is treated differently, the court must 28 analyze under the appropriate level of scrutiny whether the distinction made between the 1 two groups is justified.” Id. (citation and quotations omitted). If the aggrieved party is a 2 member of a protected or suspect class, or otherwise suffers the unequal burdening of a 3 fundamental right, the court applies strict scrutiny. City of Cleburne, 473 U.S. at 439–40. 4 “Government actions that do not . . . involve suspect classifications will be upheld if [they] 5 are rationally related to a legitimate state interest.” Fields v. Palmdale Sch. Dist., 427 F.3d 6 1197, 1208 (9th Cir. 2005). “Intentional discrimination means that a defendant acted at 7 least in part because of a plaintiff’s protected status.” Serrano v. Francis, 345 F.3d 1071, 8 1082 (9th Cir. 2003) (emphasis in original) (quoting Maynard v. City of San Jose, 37 F.3d 9 1396, 1404 (9th Cir. 1994)). 10 Plaintiff has not stated an Equal Protection claim because he has not made a 11 sufficient showing that “members of a certain group [are] being treated differently from 12 other persons based on membership in that group.” McLean, 173 F.3d at 1185. Plaintiff’s 13 statement that he “noticed that a lot” of the inmates who were given bed or cell changes 14 during the week as opposed to the weekend were gay, bisexual, or informants amounts to 15 speculation as to the status of fellow inmates and the reasons for the bed and cell changes 16 he observed. Moreover, as a prisoner, Plaintiff is not a member of a protected class under 17 the Equal Protection Clause. Abney v. Alameida, 334 F. Supp. 1221, 1230 (S.D. Cal. 2004) 18 (citing Rodriguez v. Cook, 169 F.3d 1176, 1179 (9th Cir. 1999)). Accordingly, the Court 19 dismisses this claim pursuant to 28 U.S.C. § 1915A(b)(1) because Plaintiff has failed to 20 state any § 1983 claim upon which relief could be granted. 21 E. Retaliation 22 Plaintiff alleges Defendants Zambrano, Dellinger, and Asfour retaliated against him 23 for filing or stating an intention to file 602s about them. To state a valid First Amendment 24 retaliation claim, Plaintiff must assert (1) a state actor took some adverse action against 25 him, (2) the adverse action was taken because he engaged in some protected conduct, (3) 26 the state actor’s acts “would chill or silence a person of ordinary firmness from future First 27 Amendment activities,” and (4) the adverse action “did not reasonably advance a legitimate 28 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (internal 1 quotation marks and emphasis omitted). “[A] plaintiff who fails to allege a chilling effect 2 may still state a claim if he alleges he suffered some other harm,” Brodheim v. Cry, 584 3 F.3d 1262, 1269 (9th Cir. 2009), that is “more than minimal.” Rhodes, 408 F.3d at 568 4 n.11. 5 Plaintiff contends that after he filed a 602 complaining that Defendant Zambrano 6 was discriminating against him by not giving him a bed or cell move, Zambrano told 7 Plaintiff he “ain’t the only one who knows how to write.” (Compl. at 4.) Then, on April 8 4, 2020, Zambrano “generated a falsified RVR against Plaintiff in retaliation[,] accusing 9 the Plaintiff of disrespecting staff by calling c/o Zambrano . . . ‘Mark.’” Id. 10 Plaintiff’s factual allegations fall short of establishing a retaliation claim because 11 although he has alleged a state actor (Defendant Zambrano) took some adverse action 12 against him (filed a false RVR) because he engaged in protected conduct (complained 13 about Zambrano’s refusal to give him a bed/cell move), he has not alleged any facts 14 establishing the action “would chill or silence a person of ordinary firmness from future 15 First Amendment Activities.” Rhodes, 408 F.3d at 567–68. Nor does he allege he suffered 16 some other non-minimal harm as a result of the retaliatory action. See Brodheim, 584 F.3d 17 at 1269. In fact, Plaintiff states that the allegedly falsified RVR “was dismissed as 18 counseling.” (Compl. at 4.) 19 Plaintiff also claims that when he asked Defendant Dellinger for the correct spelling 20 of his name in order to file a 602 related to Dellinger’s sanitary practices, Defendant Hayes 21 told him they were not going to give him their names, and then Dellinger and Hayes 22 “threated to activate the building alarm in retaliation.” Id. at 5. Again, Plaintiff’s 23 retaliation claim falls short. Plaintiff’s allegations involve state actors (Defendants 24 Dellinger and Hayes), but Plaintiff does not allege that either took some adverse action 25 against him, only that they threatened to do so. “[A] threat to retaliate does not violate 26 Section 1983 if the person making the threat never follows through.” Hardy v. 3 Unknown 27 Agents, 690 F. Supp. 2d 1074, 1103 (C.D. Cal. 2010) (citing Gaut v. Sunn, 810 F.3d 923, 28 925 (9th Cir. 1987)) (finding that prisoner’s allegation that he was threatened with bodily 1 harm if he pursued legal redress for beatings did not state a Section 1983 claim). Moreover, 2 even if the threat to activate the alarm is sufficient to satisfy the adverse action element of 3 a retaliation claim, Plaintiff has not made a sufficient showing that the threat was made 4 because he engaged in some protected conduct and not to advance a legitimate correctional 5 goal, such as protecting medical staff from harassment. “A plaintiff successfully pleads 6 this element by alleging, in addition to a retaliatory motive, that the defendant’s actions 7 were “arbitrary and capricious,” or that they were “‘unnecessary to the maintenance of 8 order in the institution.’” Watison v. Carter, 668 F.3d 1108, 1115 (9th Cir. 2012) (quoting 9 Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir. 1984)). Plaintiff’s facts are not 10 sufficient to show that the threat to activate the alarm was arbitrary or capricious, or that it 11 was otherwise unnecessary to the maintenance of order in the facility. Cf. id. In addition, 12 Plaintiff has not made a sufficient factual showing that the action “would chill or silence a 13 person of ordinary firmness from future First Amendment Activities,” or that he suffered 14 some other non-minimal harm as a result of action. See Brodheim, 584 F.3d at 1269; 15 Rhodes, 408 F.3d at 567–68. 16 As to Defendant Asfour, Plaintiff claims he retaliated against Plaintiff by refusing 17 to give Plaintiff the names of the staff members who were responsible for the removal of 18 the gaming system from the STAR EOP Group List and by telling Plaintiff that if he filed 19 a 602 about the removal of the gaming, the system would never be put back on the list. 20 (Compl. at 6.) As with Plaintiff’s previous retaliation claim, Plaintiff does not allege that 21 a state actor (Defendant Asfour) took some adverse action against him, only that he 22 threatened to do so, which is insufficient to satisfy the first prong of a retaliation claim. 23 See Hardy, 690 F. Supp. 2d at 1103; Gaut, 810 F.3d at 925. Plaintiff also has not made 24 any factual showing that Defendant Asfour’s action “would chill or silence a person of 25 ordinary firmness from future First Amendment Activities,” that he suffered some other 26 non-minimal harm as a result of action, or that his action “did not reasonably advance a 27 legitimate correctional goal.” See Brodheim, 584 F.3d at 1269; Rhodes, 408 F.3d at 567– 28 68 (finding prisoner’s claims of a false disciplinary report, coupled with false statements 1 to the parole board, and an “angry” threat to the prisoner that his grievance would not 2 “stand” sufficient to allege the “absence of a legitimate penological reason for the alleged 3 adverse actions”). 4 For the foregoing reasons, the Court finds Plaintiff’s retaliation claims must be 5 dismissed for failing to state a plausible claim upon which § 1983 relief can be granted. 6 See 28 U.S.C. § 1915(e)(2)(B)(ii), § 1915A(b)(1); Iqbal, 556 U.S. at 678. 7 F. Eighth Amendment 8 Plaintiff alleges his Eighth Amendment rights were violated by Defendant Dellinger 9 “coughing in his hands, rubbing his nose and passing out medication with the same gloves 10 on without changing them.” (Compl. at 5.) Only “deliberate indifference to serious 11 medical needs of prisoners constitutes the unnecessary and wanton infliction of pain . . . 12 proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 103, 104 (1976) 13 (citation and internal quotation marks omitted). “A determination of ‘deliberate 14 indifference’ involves an examination of two elements: (1) the seriousness of the prisoner’s 15 medical need and (2) the nature of the defendant’s response to that need.” McGuckin v. 16 Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., 17 Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (quoting Estelle, 429 U.S. at 104). 18 “A ‘serious’ medical need exists if the failure to treat a prisoner’s condition could result in 19 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 20 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104); Jett v. Penner, 439 F.3d 1091, 1096 21 (9th Cir. 2006); Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1248 (9th Cir. 2016). “The 22 existence of an injury that a reasonable doctor or patient would find important and worthy 23 of comment or treatment; the presence of a medical condition that significantly affects an 24 individual’s daily activities; or the existence of chronic and substantial pain are examples 25 of indications that a prisoner has a ‘serious’ need for medical treatment.” McGuckin, 974 26 F.2d at 1059 (citing Wood v. Housewright, 900 F.2d 1332, 1337–41 (9th Cir. 1990)). 27 /// 28 /// 1 Plaintiff has failed to state an Eighth Amendment claim with regard to Defendant 2 Dellinger because he has not alleged he suffers from a serious medical need, and he has 3 not alleged that he suffered any injury as a result of Dellinger’s actions. 4 G. Due Process 5 Plaintiff alleges that Defendants Hayes, Asfour, and Beyer refused to provide both 6 their names and other staff members’ names to Plaintiff when he asked for the names, 7 violating his First Amendment right to file grievances against them. (Compl. at 2–3.) 8 Prisoners have no “constitutional entitlement to a specific prison grievance procedure.” 9 Todd v. California Department of Corrections and Rehabilitation, 615 Fed. Appx. 415, 10 415 (9th Cir. 2015); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding 11 prisoners do not have a “separate constitutional entitlement to a specific prison grievance 12 procedure.”) (citation omitted); Daniels v. Aguilera, 2018 WL 558658, at *1 (E.D. Cal. 13 Jan. 24, 2018), report and recommendation adopted sub nom. Daniels v. Aguillera, 2018 14 WL 1763311 (E.D. Cal. Apr. 12, 2018) (“Because there is no right to any particular 15 grievance process, it is impossible for due process to have been violated by ignoring or 16 failing to properly process prison grievances.”). Thus, the refusal by Hayes, Asfour, and 17 Beyer to provide their names to Plaintiff, by itself, is insufficient to state a claim under 18 § 1983. Iqbal, 556 U.S. at 677–78. 19 III. Motion for a Preliminary Injunction and a Temporary Restraining Order 20 Finally, Plaintiff seeks immediate injunctive relief. (Mot. for TRO, ECF No. 3.) In 21 his Motion, Plaintiff alleges that as a result of him filing a 602 and a civil rights complaint 22 pursuant to 42 U.S.C. § 1983 in the United States District Court for the Central District of 23 California in case no. 17cv0393 JVS (AGR) alleging sexual misconduct and the use of 24 racial epithets by staff member G. Richardson at Calipatria State Prison, he has been 25 transferred to five different prisons and “CDCR staff and correctional officers continue to 26 engage in misconduct against Plaintiff.” Id. at 3. He claims he is a “target” of CDCR staff 27 and correctional officers who have “retaliated upon [him] ranging from medical staff and 28 correctional officers.” Id. He also claims CDCR staff and correctional officers have placed 1 Plaintiff’s life in danger, though he does not specify how. Id. He seeks an injunction 2 preventing specific CDCR employees “M. Zambrano, Sgt. Ryer, Correctional Officers 3 Borchard, Bell, Tapia, Solano, Arranda, Kako, Mendivil. Lt. Miranda, PT Hayes, PT 4 Dellinger, RT Asfour, and Supervisor Dr. S. Beyer” from: 5 harassing, inciting, impeding Plaintiff from preparing federal, state and or any legal document in a coordinated effort to prevent Plaintiff from sufficiently 6 prosecuting civil matters that are now pending in the Federal Courts and or 7 any appeal/602-appeal in which California code of Regulations (C.C.R.) and or Federal law grants the rights to perform under the U.S. Constitution. 8 9 (Mot. for TRO at 6.) 10 Plaintiff also asks that the Defendants be ordered not to “incite the Plaintiff’s EOP 11 group escorting officers to engage in additional harassment, retaliation, falsification of 12 documents and/or impede the Plaintiff from access to the courts.” Id. 13 To the extent Plaintiff seeks a TRO without notice upon an adverse party, he cannot 14 prevail because his submission fails to set out “specific facts in an affidavit or a verified 15 complaint . . . [which] clearly show that immediate and irreparable injury, loss, or damage 16 will result . . . before the adverse party can be heard in opposition.” Fed. R. Civ. P. 17 65(b)(1)(A); Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001) (“[I]njunctive relief is 18 ‘to be used sparingly, and only in a clear and plain case,’” especially when the court is 19 asked to enjoin the conduct of a state agency) (quoting Rizzo v. Goode, 423 U.S. 362, 378 20 (1976)). 21 Second, a plaintiff seeking a preliminary injunction must establish (1) a likelihood 22 of succeed on the merits; (2) a likelihood that plaintiff will suffer irreparable harm in the 23 absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that 24 an injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 25 (2008). “The standard for issuing a temporary restraining order is identical to the standard 26 for issuing a preliminary injunction.” Lockheed Missile & Space Co., Inc. v. Hughes 27 Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995); see also Stuhlbarg Intern. Sales 28 Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (standards 1 for issuing a TRO are “substantially identical” to those for issuing a preliminary 2 injunction). As the movant, Plaintiff “must do more than merely allege imminent harm 3 sufficient to establish standing; [he] must demonstrate immediate threatened injury as a 4 prerequisite to preliminary injunctive relief.” Caribbean Marine Servs. Co., Inc. v. 5 Baldrige, 844 F.2d 668, 674–75 (9th Cir. 1988) (holding speculative injury does not 6 constitute irreparable harm sufficient to warrant granting a preliminary injunction) (internal 7 citations omitted). 8 Plaintiff fails to meet any of these requirements. As discussed above, his Complaint 9 fails to state any plausible claim against Defendants Zambrano, Hayes, Dellinger, Asfour 10 and Beyer upon which § 1983 relief can be granted. See Fed. R. Civ. P. 8(a)(2); Iqbal, 556 11 U.S. at 677–78; Hearns v. San Bernardino Police Dept., 530 F.3d 1124, 1132 (9th Cir. 12 2008) (“[I]t is not the district court’s job to stitch together cognizable claims for relief from 13 [a] wholly deficient pleading.” (citation omitted)); Morrison v. United States, 270 F. App’x 14 514, 515 (9th Cir. 2008) (affirming Rule 8 dismissal of pro se complaint “contain[ing] a 15 confusing array of vague and undeveloped allegations,” and which “did not allege 16 sufficient facts or jurisdictional basis for any federal claim for relief”). Therefore, Plaintiff 17 has necessarily failed to show, for purposes of justifying preliminary injunctive relief, any 18 likelihood of success on the merits of his claims. See Pimental v. Dreyfus, 670 F.3d 1096, 19 1111 (9th Cir. 2012) (“[A]t an irreducible minimum the moving party must demonstrate a 20 fair chance of success on the merits . . . .” (internal quotation marks and citation omitted)); 21 see also Williams v. Duffy, et al., 2019 WL 95924, at *3 (N.D. 2019) (“[Having reached 22 th[e] conclusion [that Plaintiff’s complaint failed to state a claim], the Court need not reach 23 the remainder of the Winter factors.”); Asberry v. Beard, 2014 WL 3943459, at *9 (S.D. 24 Cal. 2014) (denying prisoner’s motion for preliminary injunction because his complaint 25 was subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, and therefore he 26 had not shown he was “likely to succeed on the merits” of any claim, that “the balance of 27 equities tip[ped] in his favor,” or the issuance of an injunction would serve the public 28 interest (citing Winter, 555 U.S. at 20)). Indeed, as to Defendants Sgt. Reyer, correctional 1 officers Borchard, Bell, Tapia, Solano, Arranda, Kako, Mendivil, and Lt. Miranda, who he 2 has named in the Motion for TRO but not in his Complaint, he has made no specific 3 allegations at all. 4 Further, the allegations he makes regarding CDCR staff “harassing, inciting, 5 impeding Plaintiff from preparing federal, state and or any legal document” in order to 6 prevent Plaintiff from “prosecuting civil matters” in his Motion for TRO are separate 7 claims unconnected to the claims alleged in his Complaint. Cf. ECF No. 1 at 4–9; Pacific 8 Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015). 9 [T]here must be a relationship between the injury claimed in the motion for injunctive relief and the conduct asserted in the underlying complaint. 10 This requires a sufficient nexus between the claims raised in a motion for 11 injunctive relief and the claims set forth in the underlying complaint itself. The relationship between the preliminary injunction and the underlying 12 complaint is sufficiently strong where the preliminary injunction would grant 13 ‘relief of the same character as that which may be granted finally.’ Absent that relationship or nexus, the district court lacks authority to grant the relief 14 requested. 15 16 Pacific Radiation, 810 F.3d at 636; see also Devose v. Herrington, 42 F.3d 470, 471 (8th 17 Cir. 1994) (“Devose’s motion is based on new assertions of mistreatment that are entirely 18 different from the claim raised and the relief requested in his inadequate medical treatment 19 lawsuit. Although these new assertions might support additional claims against the same 20 prison officials, they cannot provide the basis for a preliminary injunction in this lawsuit.”). 21 “A court’s equitable power lies only over the merits of the case or controversy before 22 it. When a plaintiff seeks injunctive relief based on claims not pled in the complaint, the 23 court does not have the authority to issue an injunction.” Pacific Radiation, 810 F.3d at 24 633. For these reasons, Plaintiff’s Motion for TRO and Preliminary Injunction (ECF No. 25 4) is DENIED. 26 /// 27 /// 28 /// 1 IV. Conclusion and Order 2 For the reasons explained, the Court: 3 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 4 (ECF No. 2); 5 2. DIRECTS the Secretary of the CDCR, or his designee, to forward whatever 6 the full $350 owed in monthly payments in an amount equal to twenty percent (20%) of 7 the preceding month’s income to the Clerk of the Court each time the amount in Plaintiff’s 8 account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE 9 CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS 10 ACTION; 11 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, 12 Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001; 13 4. DISMISSES Plaintiff’s Complaint for failing to state a claim upon which 14 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and 15 GRANTS him sixty (60) days leave from the date of this Order in which to file an 16 Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s 17 Amended Complaint must be complete by itself without reference to his original pleading. 18 Defendants not named and any claim not re-alleged in his Amended Complaint will be 19 considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 20 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 21 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 22 dismissed with leave to amend which are not re-alleged in an amended pleading may be 23 “considered waived if not repled.”). 24 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 25 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state 26 a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 27 1915A(b), and his failure to prosecute in compliance with a court order requiring 28 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 1 take advantage of the opportunity to fix his complaint, a district court may convert the 2 || dismissal of the complaint into dismissal of the entire action.”’); 3 5. DENIES Plaintiff's Motion for a TRO (ECF No. 3); 4 IT IS SO ORDERED. 5 Dated: September 9, 2020 . tt f te 6 on. Janis L. Sammartino 4 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16