1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELVIN JOHN HAMILTON, Case No.: 3:19-cv-1949-AJB-WVG CDCR #F-13607, 12 ORDER Plaintiff, 13 vs. 1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS
15 (ECF No. 2), CALIFORNIA DEPARTMENT OF 16 CORRECTIONS AND 2) DISMISSING DEFENDANTS AND 17 REHABILITATION; RICHARD J. CLAIMS PURSUANT TO 28 U.S.C. § DONOVAN STATE PRISON; SCOTT 1915(e)(2) AND 28 U.S.C. § 1915A(b), 18 KERNAN, Secretary, DANIEL 19 PARAMO, Warden, R. RODRIGUEZ, AND Correctional Officer; HAMPTON, 20 Correctional Sergeant; C. LEGGE, 3) DIRECTING U.S. MARSHAL TO 21 Correctional Officer; MEDICAL OF EFFECT SERVICE UPON RICHARD J. DONOVAN STATE DEFENDANTS RAMIREZ, 22 PRISON; DR. ERICA GAYLE; RODRIGUEZ, HAMPTON, LEGGE, 23 RICHARD JUMBA, Psychologist GAYLE, AND SHEPHERD Technician; SIERRA RAMIREZ, PURSUANT TO 28 U.S.C. § 1915(d) 24 Psychologist Technician; S. SHEPARD, AND Fed. R. Civ. P. 4(c)(3) 25 Correctional Officer, 26 Defendants. 27 28 Elvin John Hamilton (“Plaintiff”), incarcerated at the California Correctional 1 Institution in Tehachapi, California, has filed a pro se civil rights Complaint pursuant to 2 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 3 (1971). (See ECF No. 1, Compl.) Plaintiff claims that while he was incarcerated at 4 Richard J. Donovan State Prison (“RJD”) in San Diego, California, prison officials 5 ignored or dismissed his repeated requests for medical care for chest pains. (See 6 generally id. at 5-10.) 7 Plaintiff did not prepay the $400 civil filing fee required by 28 U.S.C. Section 8 1914(a) at the time of filing, and instead filed a Motion to Proceed In Forma Pauperis 9 (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (See ECF No. 2.) 10 I. Motion to Proceed In Forma Pauperis 11 All parties instituting any civil action, suit or proceeding in a district court of the 12 United States, except an application for writ of habeas corpus, must pay a filing fee of 13 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to 14 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 15 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 16 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is 17 granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or 18 “installments,” Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 19 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately 20 dismissed. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th 21 Cir. 2002). 22 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 23 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative 27 fee of $50. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Oct. 1, 2019)). The additional $50 administrative fee does 28 1 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 2 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 3 trust account statement, the Court assesses an initial payment of 20% of (a) the average 4 monthly deposits in the account for the past six months, or (b) the average monthly 5 balance in the account for the past six months, whichever is greater, unless the prisoner 6 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution 7 having custody of the prisoner then collects subsequent payments, assessed at 20% of the 8 preceding month’s income, in any month in which his account exceeds $10, and forwards 9 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 10 1915(b)(2); Bruce, 136 S. Ct. at 629. 11 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust 12 account statement pursuant to 28 U.S.C. Section 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2. 13 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account activity, as 14 well as the attached prison certificate verifying his available balances. (See ECF No. 2, at 15 4-7.) These documents show that although he carried an average monthly balance of 16 $47.26 and had $90.22 in average monthly deposits to his trust account for the six months 17 preceding the filing of this action, Plaintiff had an available balance of just $0.05 at the 18 time of filing. (See id. at 4-6.) 19 Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) but 20 declines to impose the initial $18.04 partial filing fee pursuant to 28 U.S.C. Section 21 1915(b)(1) because his prison certificate indicates he may currently have “no means to 22 pay it.” See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be 23 prohibited from bringing a civil action or appealing a civil action or criminal judgment 24 for the reason that the prisoner has no assets and no means by which to pay the initial 25 partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a 26 “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure to 27 pay . . . due to the lack of funds available to him when payment is ordered.”). Instead, 28 the Court directs the Secretary of the CDCR, or his designee, to collect the entire $350 1 balance of the filing fees required by 28 U.S.C. Section 1914 and to forward them to the 2 Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. 3 Section1915(b)(1). 4 II. Sua Sponte Screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 5 1915A(b) 6 A. Standard of Review 7 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre- 8 answer screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b). Under 9 these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any 10 portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from 11 defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) 12 (en banc) (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 13 1004 (9th Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The purpose of 14 [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the 15 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) 16 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 17 “The standard for determining whether a plaintiff has failed to state a claim upon 18 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal 19 Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 20 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 21 (9th Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the 22 familiar standard applied in the context of failure to state a claim under Federal Rule of 23 Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual 24 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 25 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 26 1121. 27 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 28 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 1 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 2 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 3 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 4 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 5 this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 6 (9th Cir. 2009). 7 B. Plaintiff’s Factual Allegations 8 Plaintiff alleges that over the course of several days in October 2017, he told 9 correctional officers and other staff at RJD that he was experiencing chest pains. (See 10 Compl. at 5-10.) These complaints were shared with Defendants Shepard, Legge, 11 Rodriguez, and Hampton, all of whom are correctional officers, as well as with 12 Defendant Erica Gayle, a doctor, and Defendants Sierra Ramirez and Richard Jumba, 13 described variously as psychologists or psychology technicians (collectively, the “Staff 14 Defendants”). (See id. at 5-7.) During this period, Plaintiff also allegedly received 15 medical records from earlier in the month indicating that he had a heart condition. (See 16 id. at 5.) Despite his claimed chest pains and documented heart condition, Plaintiff 17 contends that the Staff Defendants ignored, redirected, or dismissed his requests for 18 medical attention, a pattern that continued even after Plaintiff fell to the ground holding 19 his chest in pain. (See id. at 6.) 20 Plaintiff explains that he received medical attention only after speaking to an 21 African-American correctional counselor, who sent Plaintiff to the medical unit. (See id. 22 at 8.) Once there, a doctor examined Plaintiff and diagnosed him with bronchitis, 23 prescribed medication (though not the pain medication Plaintiff wanted) and stated that 24 Plaintiff “could’ve died” if he had not received medical attention. (See id. at 8-9.) The 25 next day, Plaintiff again fell to the ground in pain and was finally prescribed pain 26 medication. (Id. at 9.) 27 Plaintiff alleges that these actions violated his right to medical care, constituted 28 cruel and unusual punishment, and were fraudulent and negligent. (Id. at 5.) Plaintiff 1 also alleges that delays in Defendants Rodriguez, Hampton, and Jumba’s response to his 2 complaints was the result of racism, recounting an incident later in 2017 in which a 3 Caucasian inmate’s complaints of chest pains triggered an immediate response. (See id. 4 at 10.) 5 C. Bivens 6 Plaintiff’s Complaint was filed pursuant to Bivens. (See Compl. at 1.) “In Bivens, 7 the Supreme Court ‘recognized for the first time an implied right of action for damages 8 against federal officers alleged to have violated a citizen’s constitutional rights.’” Vega 9 v. United States, 881 F.3d 1146, 1152 (9th Cir. 2018) (emphasis added) (quoting 10 Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017) (citation omitted)). “In the limited 11 settings where Bivens does apply, the implied cause of action is the ‘federal analog to 12 suits brought against state officials under Rev. Stat. § 1979, 42 U.S.C. § 1983.’” Iqbal, 13 556 U.S. at 675-76 (quoting Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)). 14 Defendants, however, are alleged to be state entities, state prison officials, and staff 15 at a state correctional facility. (See Compl. at 2-4.) Thus, because “[a]ctions under § 16 1983 and those under Bivens are identical save for the replacement of a state actor under 17 § 1983 by a federal actor under Bivens,” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 18 1991), and pro se pleadings are entitled to liberal construction, the Court will construe 19 Plaintiff’s Complaint as if it were filed pursuant to 42 U.S.C. Section 1983. See Resnick 20 v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (noting court’s duty to construe pro se 21 prisoner’s pleadings liberally when screening complaints pursuant to 28 U.S.C. Section 22 1915A) (citation omitted); Hatcher v. Blake, No. 3:18-cv-00561-MMA-MDD, 2018 WL 23 2267193, at *3 (S.D. Cal. May 17, 2018) (construing a complaint brought pursuant to 24 Bivens as if it were filed pursuant to 42 U.S.C. Section 1983 because plaintiff claimed 25 violations of his civil rights by state actors). 26 D. 42 U.S.C. Section 1983 27 To state a claim under 42 U.S.C. Section 1983, a plaintiff must allege two essential 28 elements: (1) that a right secured by the Constitution or laws of the United States was 1 violated, and (2) that the alleged violation was committed by a person acting under the 2 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 3 1035-36 (9th Cir. 2015). 4 a. Claims Against Warden Paramo and Secretary Kernan 5 Plaintiff’s claims against Warden Paramo and Secretary Kernan for “professional 6 negligence,” (Compl. at 3) must be dismissed because supervisors may be held 7 individually liable in a Section 1983 suit only if they engaged in some “culpable action, 8 or inaction, [that] is directly attributed to them.” Starr v. Baca, 652 F.3d 1202, 1207 (9th 9 Cir. 2011). Supervisors like Paramo and Kernan “cause[]” a constitutional deprivation if 10 they (1) personally participate in or direct a subordinate’s constitutional violation; or (2) 11 the constitutional deprivation can otherwise be “directly attributed” to the supervisors’ 12 own culpable action or inaction, even though the supervisors were not “physically present 13 when the [plaintiff’s] injury occurred.” Id. at 1206-07; see also Crowley v. Bannister, 14 734 F.3d 967, 977 (9th Cir. 2013) (supervisor may be held liable under Section 1983 only 15 if there is “a sufficient causal connection between the supervisor’s wrongful conduct and 16 the constitutional violation”) (citations and internal quotation marks omitted). 17 Plaintiff does not offer any “factual content” that would allow the Court to “draw 18 the reasonable inference” that Paramo or Kernan personally participated in any of the 19 allegedly unconstitutional conduct, or that the alleged conduct could otherwise be 20 “directly attributed” to them. See Iqbal, 556 U.S. at 678 (“[U]nadorned, the-defendant- 21 unlawfully-harmed-me accusation[s]” are insufficient to show entitlement to relief). 22 Rather than allege any facts demonstrating either individual’s participation in the events 23 alleged in the Complaint, Plaintiff asserts only that they engaged in “[p]rofessional 24 [n]egligence,” without explaining what actions, if any, they took. (See Compl. at 3.) 25 Therefore, Plaintiff’s claims against Defendants Paramo and Kernan are dismissed sua 26 sponte based on Plaintiff’s failure to state a plausible claim against either of them. See 28 27 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; 28 Rhodes, 621 F.3d at 1004; see also Iqbal, 556 U.S. at 678-79. 1 b. Claims Against CDCR, RJD, and Medical of Richard J. Donovan Prison 2 Plaintiff’s claims against three entities, the CDCR, RJD, and Medical of Richard J. 3 Donovan Prison also must be dismissed. The CDCR, RJD, and medical department of 4 RJD are not “persons” subject to suit under Section 1983 and are entitled to immunity 5 from suit for monetary damages under the Eleventh Amendment. See Seminole Tribe of 6 Fla. v. Florida, 517 U.S. 44, 53-54 (1996); Groten v. California, 251 F.3d 844, 851 (9th 7 Cir. 2001) (citing Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993)); see also 8 Dragasits v. California, No. 3:16-cv-01998-BEN-JLB, 2016 WL 680947, at *3 (S.D. 9 Cal. Nov. 15, 2016) (“The State of California’s Department of Corrections and 10 Rehabilitation and any state prison, correctional agency, sub-division, or department 11 under its jurisdiction, are not ‘persons’ subject to suit under § 1983.” (citing Groten, 251 12 F.3d at 851)); Bridgeman v. Education Dep’t, No. 11-cv-0387-JLS-CAB, 2011 WL 13 2532413, at *1 (S.D. Cal. June 24, 2011) (dismissing claims against the “Education 14 Department” and the “Law Library” of RJD because they are not “persons” and are 15 immune from suit under the Eleventh Amendment). Accordingly, Plaintiff’s claims 16 against these Defendants are dismissed sua sponte for failure to state a plausible claim. 17 See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). 18 c. Official Capacity Claims Against All Defendants 19 Plaintiff’s allegations that Defendants violated his constitutional rights in their 20 official capacities must also be dismissed. The Complaint includes check boxes to 21 indicate whether Plaintiff intends to sue Defendants in their individual or official 22 capacities, or both. (See Compl. at 2-3.) Plaintiff checked the boxes for both. (See id.) 23 “[A] suit against a state official in his or her official capacity is not a suit against the 24 official but rather is a suit against the official’s office.” Will v. Mich. Dep’t of State 25 Police, 491 U.S. 58, 71 (1989). As a result, Plaintiff’s official capacity claims must be 26 dismissed sua sponte for failure to state a claim because: (1) there is no conduct by a 27 “person” as required for a claim under Section 1983, and (2) the Eleventh Amendment 28 bars suits for damages against state officials sued in their official capacity absent an 1 express waiver of immunity by Congress or the state, neither of which is present under 2 these circumstances. See id.; Kentucky v. Graham, 473 U.S. 159, 169 (1985); see also 28 3 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1). 4 d. Remaining Claims in Count I against Defendants Rodriguez, Hampton, 5 Jumba, Legge, Gayle, Ramirez, and Shepard 6 As currently pleaded, the Court finds that Count I of Plaintiff’s Complaint contains 7 “sufficient factual matter, accepted as true,” to state an Eighth Amendment claim against 8 Defendants Rodriguez, Hampton, Legge, Gayle, Ramirez, and Shepard in their personal 9 capacities that is “plausible on its face,” Iqbal, 556 U.S. at 678, and, therefore, is 10 sufficient to survive the “low threshold” set for sua sponte screening pursuant to 28 11 U.S.C. Sections 1915(e)(2) and 1915A(b). See Wilhelm, 680 F.3d at 1123; see also 12 Estelle v. Gamble, 429 U.S. 97, 104 (1976) (prison officials’ deliberate indifference to an 13 inmate’s serious medical needs constitutes cruel and unusual punishment in violation of 14 the Eighth Amendment); Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) 15 (“Deliberate indifference ‘may appear when prison official deny, delay or intentionally 16 interfere with medical treatment, or it may be shown in the way in which prison 17 physicians provide medical care.’” (quoting Hutchinson v. United States, 838 F.2d 390, 18 394 (9th Cir. 1988))). Therefore, the Court will order the U.S. Marshal to effect service 19 upon Defendants Rodriguez, Hampton, Legge, Gayle, Ramirez, and Shepard on 20 Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and 21 serve all process, and perform all duties in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he 22 court may order that service be made by a United States marshal or deputy marshal . . . if 23 the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915.”). 24 The Court will not do the same, however, with Plaintiff’s claim in Count I against 25 Defendant Jumba, which must be dismissed. The Complaint alleges that Jumba, after 26 Plaintiff reported that he was experiencing chest pains and had a heart condition, told 27 Plaintiff to “‘hold on’” and that medical personnel would see him later. (See Compl. at 5 28 (quoting Jumba).) This is insufficient to state an Eighth Amendment claim, which requires 1 more than “mere negligence or medical malpractice, a mere delay in medical care (without 2 more), or a difference of opinion over proper medical treatment . . . .” Bond v. Arrowhead 3 Regional Med. Ctr., No. ED CV 11-2049-DDP (PLA), 2015 WL 509826, at *13 (C.D. Cal. 4 Feb. 5, 2015) (citing Estelle, 429 U.S. at 105-07; Sanchez v. Vild, 891 F.2d 240, 242 (9th 5 Cir. 1989); Shapley v. Nevada Bd. Of State Prison Commr’s, 766 F.2d 404, 407 (9th Cir. 6 1985)); see also Shapley, 766 F.2d at 407 (“[M]ere delay of surgery, without more, is 7 insufficient to state a claim of deliberate medical indifference . . . .”). Therefore, the Court 8 dismisses Count I against Defendant Jumba sua sponte based on Plaintiff’s failure to state 9 a plausible Eighth Amendment claim against him. See 28 U.S.C. § 1915(e)(2)(B)(ii) and 10 § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 11 e. Count II 12 In Count II, Plaintiff alleges that Defendants Rodriguez, Hampton, and Jumba 13 violated Plaintiff’s civil rights by treating him differently than a Caucasian inmate who 14 experienced similar chest pains approximately a month after Plaintiff. (See Compl. at 15 10.) Unlike in Plaintiff’s case, Defendants Rodriguez, Hampton, and Jumba promptly 16 sounded the alarm when this inmate complained of chest pains and ensured that he 17 received immediate medical attention. (See id.) 18 Although Plaintiff does not label it as such, the Court liberally construes this claim 19 as one under the Equal Protection Clause of the Fourteenth Amendment, which 20 “commands that no state shall ‘deny to any person within its jurisdiction the equal 21 protection of the laws . . . .’” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 22 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)); see Resnick, 213 F.3d at 447 23 (pro se pleadings are to be liberally construed). The Equal Protection Clause “is 24 essentially a direction that all persons similarly situated should be treated alike.” City of 25 Cleburne, 473 U.S. at 439. A plaintiff alleging denial of equal protection based on race 26 must allege intentional discrimination or facts susceptible to a reasonable inference of 27 discriminatory intent. See Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 28 1026 (9th Cir. 1998); see also City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 1 538 U.S. 188, 193-94 (2003) (“‘[P]roof of racially discriminatory intent or purpose is 2 required’ to show a violation of the Equal Protection Clause.” (quoting Arlington Heights 3 v. Metro. Housing Dev. Corp., 429 U.S. 252, 265 (1977))). 4 Despite the benefit of liberal construction, Count II fails to state a claim for denial 5 of equal protection. Although the clear implication of Plaintiff’s allegations is that he is 6 African-American, and thus a member of a protected class, he does not allege that fact in 7 his Complaint. See Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (“‘To 8 state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the 9 Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or 10 purpose to discriminate against the plaintiff based upon membership in a protected class.’” 11 (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (emphasis added))). 12 More importantly however, and even assuming that Plaintiff is African-American, Plaintiff 13 does not allege facts showing that the different responses to Plaintiff’s and the Caucasian 14 inmate’s complaints of chest pain were a result of intentional racial discrimination, nor do 15 the facts alleged give rise to a reasonable inference of discriminatory intent. See, e.g., 16 Richardson v. Pletting, No. 5:18-cv-00961-CJC-KES, 2018 WL 6314198, at *9 (C.D. Cal. 17 July 30, 2018) (distinguishing between allegations against correctional officers who made 18 statements suggesting intent to discriminate based on race, and “speculative assertions” 19 that other prison officials harbored racist views); Holmes v. Baca, No. 3:17-cv-00320-RCJ- 20 WGC, 2018 WL 5815544, at *3 (D. Nev. Nov. 6, 2018) (concluding that plaintiff stated 21 equal protection claim against one defendants who “generally treats inmates differently in 22 several contexts . . . based on race” while dismissing claims against other defendants where 23 the allegations did not indicate a racially discriminatory motive). As a result, Count II is 24 dismissed sua sponte for failure to state a plausible equal protection claim. See 28 U.S.C. 25 § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 26 F.3d at 1004. 27 /// 28 /// 1 f. Injunctive Relief 2 Finally, the Complaint seeks “[a]n injunction preventing defendant(s): California 3 Department of Correction and Rehabilitation, Sierra Ramirez, Dr. Erica Gayle, Richard J. 4 Donovan State Prison, C. Legge, R. Rodriguez, Richard Jum[b]a, Sergeant Mr. 5 Hampton.” . (Compl. at 13.) The Complaint does not, however, explain what it seeks to 6 prevent these Defendants from doing. This open-ended demand for an injunction is 7 insufficient: to grant an injunction the Court must be able to “state [the injunction’s] 8 terms specifically” and “describe in reasonable detail—and not by referring to the 9 complaint or other document—the act or acts restrained or required.” See Fed. R. Civ. P. 10 65(d)(1)(B)-(C). Thus, Plaintiff’s demand for injunctive relief is dismissed sua sponte 11 for failure to state a claim upon which relief may be granted. See 28 U.S.C. 12 § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 13 F.3d at 1004. 14 III. Conclusion and Orders 15 For the reasons discussed, the Court: 16 1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2); 17 2) DIRECTS the Secretary of the CDCR, or his designee, to collect from 18 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 19 monthly payments from his account in an amount equal to twenty percent (20%) of the 20 preceding month’s income and forwarding those payments to the Clerk of the Court each 21 time the amount in the account exceeds $10 pursuant to 28 U.S.C. Section 1915(b)(2). 22 ALL PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND 23 NUMBER ASSIGNED TO THIS ACTION; 24 3) DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph 25 Diaz, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 26 942883, Sacramento, California, 94283-0001; 27 4) DISMISSES Plaintiff’s claims against Defendants Paramo, Kernan, 28 1 CDCR, RJD, Medical of Richard J. Donovan Prison, and Jumba in their entirety sua 2 sponte for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. 3 Sections 1915(e)(2) and 1915A(b), and DIRECTS the Clerk to terminate Defendants 4 Paramo, Kernan, CDCR, RJD, Medical of Richard J. Donovan Prison, and Jumba as 5 parties to this action; 6 5) DISMISSES Plaintiff’s claims against Defendants in their official 7 capacities, Count II of the Complaint, and Plaintiff’s demand for injunctive relief sua 8 sponte for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. 9 Sections 1915(e)(2) and 1915A(b); 10 6) DIRECTS the Clerk to issue a summons as to Plaintiff’s Complaint (ECF 11 No. 1) upon Defendants Rodriguez, Hampton, Legge, Gayle, Ramirez, and Shepard and 12 forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each of these 13 Defendants. In addition, the Clerk will provide Plaintiff with a certified copy of this 14 Order, a certified copy of his Complaint, and the summons so that he may serve the 15 Defendants. Upon receipt of this “IFP Package,” Plaintiff must complete the Form 285 16 as completely and accurately as possible, include an address where these Defendants may 17 be served, see S.D. Cal. Civ. L.R. 4.1.c, and return it to the United States Marshal 18 according to the instructions the Clerk provides in the letter accompanying his IFP 19 package; 20 7) ORDERS the U.S. Marshal to serve a copy of the Complaint and summons 21 upon Defendants Rodriguez, Hampton, Legge, Gayle, Ramirez, and Shepard as directed 22 by Plaintiff on the USM Form 285 provided to him. All costs of that service will be 23 advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3); 24 8) ORDERS the Defendants Rodriguez, Hampton, Legge, Gayle, Ramirez, and 25 Shepard, once served, to reply to Plaintiff’s Complaint within the time provided by the 26 applicable provisions of Federal Rule of Civil Procedure 12(a). See 42 U.S.C. 27 § 1997e(g)(2) (while a defendant may occasionally be permitted to “waive the right to 28 reply to any action brought by a prisoner confined in any jail, prison, or other correctional 1 || facility under section 1983,” once the Court has conducted its sua sponte screening 2 || pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and thus, has made a 3 || preliminary determination based on the face on the pleading alone that Plaintiff has a 4 “reasonable opportunity to prevail on the merits,” defendant is required to respond); and 5 9) ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 6 serve upon the Defendants, or, if appearance has been entered by counsel, upon 7 || Defendants’ counsel, a copy of every further pleading, motion, or other document 8 ||submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). Plaintiff must 9 ||include with every original document he seeks to file with the Clerk of the Court, a 10 || certificate stating the manner in which a true and correct copy of that document has been 11 || was served on the Defendants or their counsel, and the date of that service. See S.D. Cal. 12 || Civ. L.R. 5.2. Any document received by the Court which has not been properly filed 13 || with the Clerk, or which fails to include a Certificate of Service upon the Defendants, 14 || may be disregarded. 15 16 IT IS SO ORDERED. 17 18 || Dated: January 16, 2020 Q 19 Hon, Anthony J.Battaglia 20 United States District Judge 21 22 23 24 25 26 27 28 14