1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS JOVON RUTHERFORD, Case No.: 3:24-cv-01627-JAH-JLB CDCR #BE-6676, 12 ORDER GRANTING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AND DISMISSING CIVIL ACTION 14 FOR FAILING TO STATE A CLAIM S. STEADMAN, Warden; 15 PURSUANT TO 28 U.S.C. § 1915(e)(2) P. WINGO, ISU Officer; AND 28 U.S.C. § 1915A(b) 16 B. GOMEZ, C/O;
C. CHADRY, 17 [ECF No. 2] C/O; ESPENO, 18 Defendants. 19 20 21 Before the Court is a civil rights complaint filed by Plaintiff Nicholas Jovon 22 Rutherford, a prisoner at Salinas Valley State Prison (“SVSP”), who is proceeding without 23 counsel pursuant to 42 U.S.C. § 1983. (See ECF No. 1, “Compl.”) Plaintiff claims prison 24 officials at Richard J. Donovan Correctional Facility (“RJD”) in San Diego violated his 25 constitutional rights while he was incarcerated there in October 2022. (Id. at 2‒3.) Plaintiff 26 has not paid the filing fee required by 28 U.S.C. § 1914(a) to commence a civil action, but 27 instead seeks leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) 28 (ECF No. 2). 1 For the reasons explained, the Court GRANTS Plaintiff leave to proceed IFP, but 2 DISMISSES his Complaint sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) 3 because it fails to state a claim upon which relief may be granted. 4 I. MOTION TO PROCEED IFP 5 All parties instituting any civil action, suit or proceeding in a district court of the 6 United States, except an application for writ of habeas corpus, must pay a filing fee.1 See 7 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire fee at the 8 time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant to 28 9 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); cf. 10 Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] IFP 11 application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the fee[s] 12 [a]re paid.”). 13 “While the previous version of the IFP statute granted courts the authority to waive 14 fees for any person ‘unable to pay[,]’ … the PLRA [Prison Litigation Reform Act] 15 amended the IFP statute to include a carve-out for prisoners: under the current version of 16 the IFP statute, ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the 17 prisoner shall be required to pay the full amount of a filing fee.’” Hymas, 73 F.4th at 767 18 (quoting 28 U.S.C. § 1915(b)(1)). Section 1915(b) “provides a structured timeline for 19 collecting this fee.” Id. (citing 28 U.S.C. § 1915(b)(1)-(2)). 20 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of 21 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account 22 statement (or institutional equivalent) for … the 6-month period immediately preceding the 23 filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d 1113, 24 25 26 1 In addition to the $350 statutory fee, civil litigants filing suit are required to pay an 27 additional administrative fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The 28 1 1119 (9th Cir. 2005). Using this financial information, the court “shall assess and when 2 funds exist, collect, … an initial partial filing fee,” which is “calculated based on ‘the 3 average monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the 4 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly 5 payments of 20 percent of the preceding month’s income credited to the prisoner’s 6 account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). Thus, while 7 prisoners may qualify to proceed IFP without having to pay the statutory filing fee in one 8 lump sum, they nevertheless remain obligated to pay the full amount due in monthly 9 payments. See Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2); 10 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 11 In support of his IFP Motion, Plaintiff has submitted a copy of his CDCR Inmate 12 Statement Report, as well as notarized certificate of funds issued by a SVSP trust 13 accounting department official which attests as to his trust account balance and deposits 14 for the 6-months prior to filing. (See ECF No. 2 at 7‒13.) See also 28 U.S.C. § 1915(a)(2); 15 S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These documents show average monthly 16 deposits of $128.55 and an average monthly balance of $157.08 in Plaintiff’s account, but 17 an available balance of only $.02 at the time of filing. (See ECF No. 2 at 7, 11.) Therefore, 18 the Court GRANTS Plaintiff’s Motion to Proceed IFP and assesses a partial initial filing 19 fee of $31.41, but defers its collection because Plaintiff’s trust account statements show he 20 currently “has no means to pay it.” Bruce, 577 U.S. 84–85. Instead, the Court DIRECTS 21 the Secretary of the CDCR to place a $350 encumbrance on Plaintiff’s trust account and to 22 forward installment payments to the Clerk of the Court pursuant to 28 U.S.C. § 1915(b)(2) 23 until the entire fee required by 28 U.S.C. § 1914 is paid. See 28 U.S.C. § 1915(b)(1). 24 II. SCREENING 25 A. Standard of Review 26 Because Plaintiff is a prisoner seeking damages from a governmental entity or actor 27 and is proceeding IFP, his Complaint requires a preliminary review pursuant to 28 U.S.C. 28 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a 1 prisoner’s IFP complaint, or any portion found frivolous, malicious, failing to state a claim, 2 or seeking damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 3 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 4 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of 5 [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the 6 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) 7 (citation omitted). 8 “The standard for determining whether a plaintiff has failed to state a claim upon 9 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 10 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 11 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 12 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 13 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 14 12(b)(6)”). 15 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain 16 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 17 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); 18 Wilhelm, 680 F.3d at 1121. A complaint fails to state a claim if it lacks a “cognizable legal 19 theory” or “sufficient facts … to support a cognizable legal theory.” Shroyer v. New 20 Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v. 21 Block, 250 F.3d 729, 732 (9th Cir. 2001)). Detailed factual allegations are not required, 22 but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. And while the court “ha[s] 24 an obligation where the petitioner is pro se, particularly in civil rights cases, to construe 25 the pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 26 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 27 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially 28 pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 1 B. Factual Allegations 2 Plaintiff’s one-page Complaint is not a model of clarity, but a liberal construction 3 indicates that on October 8, 2022, Defendant Correctional Officers Gomez and Chadry 4 approved and moved Plaintiff to Cell #150 in the 12 Block of RJD’s “C” Yard because he 5 had a cast on his thumb due to injuries he sustained during an October 6, 2022 fight and 6 needed a lower bunk accommodation. (See Compl. at 2, 3.) Plaintiff states that “before 7 a[n] inmate is perm[a]nently housed,” something called “Exhibit B” protocol must be 8 performed, but that “period point blank … did not occur.” (Id. at 3.) 9 Several weeks later, on or about October 27, 2022, Plaintiff claims he was placed in 10 Administrative Segregation (“Ad-Seg”) after Defendant Investigative Services Unit 11 (“ISU”) Officer Wingo searched his cell, indicated a “kite” had been dropped,2 and 12 discovered weapons hidden inside one of its walls. (Id.) As a result, Plaintiff appears to 13 have been charged with possession of contraband and at some later time was transferred to 14 Tehachapi State Prison, a “180 level [IV]” facility. (Id.) Plaintiff alleges he asked RJD’s 15 Associate Warden Steadman to help, “but he never did.” (Id.) At some unspecified time 16 after the transfer, Plaintiff alleges he was “stabbed multiple times” by an unidentified 17 assailant. (Id.) 18 Based on these facts, Plaintiff contends Defendants Gomez, Chadry, Wingo, and 19 Steadman3 all violated his rights to due process and to be free from cruel and unusual 20
21 2 “Dropping kites” is prison slang for “snitching” or providing confidential information to 22 prison staff. See Cordero v. Guzman, 2015 WL 9319489, at *3 (E.D. Cal. Dec. 23, 2015), 23 report and recommendation adopted, 2016 WL 1244670 (E.D. Cal. Mar. 30, 2016); Bryant v. Armstrong, 2012 WL 7680324, at *14 (S.D. Cal. Aug. 3, 2012), report and 24 recommendation adopted, 2013 WL 941521 (S.D. Cal. Mar. 11, 2013). 25 3 Plaintiff also names a Defendant Espeno in the caption of his Complaint, see Compl. at 26 1, but he includes no further facts explaining Espeno’s role or actions with respect to the 27 October 27, 2022 cell search. Rule 10 of the Federal Rules of Civil Procedure requires that the caption of a Complaint “name all the parties.” Fed. R. Civ. P. 10(a). However, “the 28 1 punishment by negligently failing to perform their duties. (Id.) 2 C. 42 U.S.C. § 1983 3 As pleaded, the Court finds Plaintiff’s Complaint must be dismissed sua sponte 4 pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A because it fails to state a claim upon 5 which § 1983 relief can be granted. Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121; 6 Shroyer, 622 F.3d at 1041. 7 “Section 1983 creates a private right of action against individuals who, acting under 8 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 9 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a plaintiff must show 10 both (1) deprivation of a right secured by the Constitution and laws of the United States, 11 and (2) that the deprivation was committed by a person acting under color of state law.” 12 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 13 Here, Plaintiff alleges Defendants Steadman, Wingo, Gomez, and Chadry are all 14 prison officials employed at RJD, and in both their individual and official capacities 15 violated his civil rights. (See Compl. at 2‒3.) “[G]enerally, a public employee acts under 16 color of state law while acting in his official capacity or while exercising his 17 responsibilities pursuant to state law.” West v. Atkins, 487 U.S. 42, 49 (1988). Therefore, 18 in order to determine whether Plaintiff has pleaded a plausible claim for relief, the Court 19
20 21 caption of a complaint.” Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082, 1085 (9th Cir. 1983). “Rather, a party may be properly in a case if the allegations in the 22 body of the complaint make it plain that the party is intended as a defendant.” Id. In other 23 words, “the caption of an action is only the handle to identify it and ordinarily the determination of whether or not a defendant is properly in the case hinges upon the 24 allegations in the body of the complaint and not upon his inclusion in the caption.” 25 Hoffman v. Halden, 268 F.2d 280, 303‒04 (9th Cir. 1959), overruled on other grounds by Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962). Thus, while it remains unclear whether 26 Plaintiff even intended to include Espeno as a party, the Court nevertheless finds the body 27 of his pleading is “devoid of further factual enhancement” which “allows [it] to draw the reasonable inference” that Espeno may be held “liable for the misconduct alleged.” Iqbal, 28 1 need next determine whether the factual allegations in his Complaint are sufficient to show 2 “each Government-official defendant, through the official’s own individual actions, has 3 violated the Constitution,” and thus, may be held “liable for the misconduct alleged.” 4 Iqbal, 556 U.S. at 676, 678. 5 D. Individual Liability 6 As an initial matter, the Court finds Plaintiff’s Complaint fails to state any plausible 7 claim for relief against Associate Warden Steadman. “Liability under § 1983 must be 8 based on the personal involvement of the defendant.” Barren v. Harrington, 152 F.3d 9 1193, 1194 (9th Cir. 1998). Thus, in order to state a viable section 1983 claim, Plaintiff’s 10 allegations “must be individualized and focus on the duties and responsibilities of each 11 individual defendant whose acts or omissions are alleged to have caused a constitutional 12 deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 13 423 U.S. 362, 370‒71 (1976)). His Complaint must include facts sufficient to plausibly 14 show each defendant “[performed] an affirmative act, participate[d] in another’s 15 affirmative acts, or omit[ted] to perform an act which he is legally required to do that 16 cause[d] the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 17 743 (9th Cir. 1978). 18 While Plaintiff identifies Steadman as RJD’s Associate Warden, and claims without 19 more that Steadman failed to “meet [] expectations” by failing to “help” him, see Compl. 20 at 2, 3, he includes no further factual content to show how Steadman’s acts or omissions 21 violated the Constitution. Leer, 844 F.2d at 633. “[V]icarious liability is inapplicable to . 22 . . § 1983 suits, [therefore] Plaintiff must plead that each Governmental-official defendant, 23 through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 24 U.S. at 676. “A plaintiff must allege facts, not simply conclusions, t[o] show that [each 25 defendant] was personally involved in the deprivation of his civil rights.” Barren v. 26 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1988). 27 Supervisory officials, like the Associate Warden, “may not be held liable for the 28 unconstitutional conduct of their subordinates under a theory of respondeat superior.” 1 Iqbal, 556 U.S. at 676. Instead, “[a] supervisor may be liable only if (1) he or she is 2 personally involved in the constitutional deprivation, or (2) there is a sufficient causal 3 connection between the supervisor’s wrongful conduct and the constitutional violation.” 4 Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) (citation and quotation marks 5 omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (supervisors may be held 6 liable only if they “participated in or directed the violations, or knew of the violations and 7 failed to act to prevent them.”). 8 Plaintiff’s Complaint fails to allege both that RJD’s Associate Warden was 9 personally involved in either his October 8, 2022 cell move or the subsequent search which 10 form the basis of his constitutional claims. Iqbal, 556 U.S. at 678. Therefore, his claims 11 against Steadman must be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 12 1915A(b)(1). See Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. 13 E. Due Process 14 Second, to the extent Plaintiff claims Defendants Gomez, Chadry, and Wingo 15 violated his right to due process by “negligently” approving his cell move, moving him 16 into the cell, or “fail[ing] to perform [their] duty” by searching it without following “proper 17 Exhibit B cell and room inspection” procedures,4 placing him in administrative segregation 18 after weapons were discovered, or subsequently transferring him to another prison, see 19 Compl. at 2, 3, he fails to state a claim upon which § 1983 relief can be granted. Watison, 20
21 4 While Plaintiff does not explicitly invoke the Fourth Amendment with respect to 22 Defendant Wingo’s cell search, he suggests it was improper based on confidential evidence 23 contained in a kite. (See Compl. at 3.) However, to the extent Plaintiff is challenging the validity of the search, he fails to state a Fourth Amendment claim because he has no 24 reasonable expectation of privacy in his cell. See Hudson v. Palmer, 468 U.S. 517, 525‒ 25 26 (1984). Prison officials may conduct “wholly random” searches for contraband; officers need not have reasonable suspicion. See id. at 528‒29; see also Seaton v. Mayberg, 610 26 F.3d 530, 534 (9th Cir. 2010) (“A right of privacy in traditional Fourth Amendment terms 27 is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order.”) (citing Hudson, 468 28 1 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. 2 While Plaintiff does not explain, the Court liberally construes his pleading and 3 presumes for purposes of screening that “Exhibit B” protocols are the search procedures 4 employed by prison staff to ensure a cell contains no contraband. See, e.g., Burton v. Cano, 5 2018 WL 2970803, at *3 (E.D. Cal. June 11, 2018), report and recommendation adopted, 6 2018 WL 9866491 (E.D. Cal. Sept. 21, 2018) (referring to an “Exhibit B cell inspection 7 sheet”); Walton v. Adams, 2009 WL 735212, at *2 (E.D. Cal. Mar. 19, 2009) (referring to 8 “an Exhibit B” as a “record of cell search”). 9 Section 3287 of Title 15 of the California Code of Regulations provides: 10 Insofar as possible, a cell, room, or dormitory bed area and locker will be thoroughly inspected immediately upon its vacancy and again, if there is a 11 significant time lapse, before another incarcerated person is assigned to the 12 same cell, room, or dormitory bed and locker. Such inspections are required and must be recorded for restricted housing unit and isolation cells. The 13 purpose of such inspections is to fix responsibility or the absence of 14 responsibility for security and safety hazards and serious contraband found in the cell, room, or dormitory area. 15
16 Cal. Code Regs., tit. 15 § 3287(a); see also Cal. Dep. Corr. & Rehab. Op. Man. (“DOM”) 17 § 52050.16 (2024) (“Insofar as possible, a cell, room, dorm, or living area and locker shall 18 be searched immediately upon its vacancy and again, if there is a significant time lapse, 19 before it is reassigned. Such inspections are required and shall be recorded for segregation, 20 Disciplinary Detention, and SHU cells.”). 21 As pleaded, Plaintiff seeks to hold Defendant Gomez, Chadry, and Wingo liable for 22 “fail[ing] to perform [their] duti[es] with respect to “Exhibit B” internal institutional search 23 protocols. (See Compl. at 3.) But “liability for negligently inflicted harm is categorically 24 beneath the threshold of constitutional due process.” County of Sacramento v. Lewis, 523 25 U.S. 833, 849 (1998) (citations omitted); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 26 2004) (citing Smith v. City of Fontana, 818 F.2d 1411, 1418, n.9 (9th Cir. 1987) (“[T]the 27 Due Process Clause is simply not implicated by a negligent act of an official[.]”) (citation 28 and internal quotation marks omitted)). 1 In addition, a purported failure to adhere to certain prison regulations and guidelines 2 does not, without more, establish the violation a federal constitutional right. See Cousins 3 v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (“[S]tate departmental regulations do not 4 establish a federal constitutional violation.”); Case v. Kitsap County Sheriff’s Dep’t, 249 5 F.3d 921, 930 (9th Cir. 2001) (citations omitted)); see also McDonald v. Jones, 2024 WL 6 2786789, at *2 n.1 (E.D. Cal. May 30, 2024) (dismissing claims that officials acted in 7 “dereliction of [their]duties” as set forth in unidentified prison policies); Pettus v. Serrano, 8 2022 WL 3574417, at *8 (C.D. Cal. July 1, 2022) (dismissing prisoner’s claims that 9 “prison[] policies and procedures regarding ‘body and cell searches’ were not followed” 10 for failing to state a due process claim pursuant to 28 U.S.C. § 1915A). In short, even if 11 Gomez, Chadry, and Wingo did fail to employ appropriate “Exhibit B” cell search 12 protocols, the violation of Cal. Code Regs., tit. 15 § 3287(a) or DOM § 52050.16 by itself 13 does not violate the Fourteenth Amendment. 14 Specifically, the Fourteenth Amendment ensures that the State shall not “deprive 15 any person of life, liberty or property, without due process of the law.” U.S. Const. amend. 16 XIV, § 1. “A procedural due process claim has two distinct elements: (1) a deprivation of 17 a constitutionally protected liberty or property interest, and (2) a denial of adequate 18 procedural protections.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 19 971, 982 (9th Cir. 1998). But “lawfully incarcerated persons retain only a narrow range of 20 protected liberty interests” under the Due Process Clause. Chappell v. Mandeville, 706 21 F.3d 1052, 1062‒63 (9th Cir. 2013) (internal quotation marks and citation omitted). Thus, 22 while prison regulations like Cal. Code Regs., tit. 15 § 3287(a) and DOM § 52050.16 may 23 under certain circumstances create a liberty interest protected by the Fourteenth 24 Amendment, “these interests will be generally limited to freedom from restraint which . . . 25 imposes atypical and significant hardship on the inmate in relation to the ordinary incidents 26 of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995); see also Chappell, 706 F.3d 27 at 1064 (“[T]o find a violation of a state-created liberty interest[,] the hardship imposed on 28 the prisoner must be ‘atypical and significant . . . in relation to the ordinary incidents of 1 prison life.’”) (quoting Sandin, 515 U.S. at 484). When conducting the Sandin inquiry, 2 courts look to Eighth Amendment standards, the prisoners’ conditions of confinement, the 3 duration of the sanction, and whether the sanction imposed affected the length of sentence. 4 See Brown v. Or. Dep’t of Corr., 751 F.3d 983, 987 (9th Cir. 2014). 5 Here, Plaintiff seeks to hold Defendants Gomez, Chadry and Wingo liable for 6 violating his due process rights, but he fails to allege facts sufficient to show how their 7 alleged failure to properly follow “Exhibit B” cell search protocols imposed an “atypical 8 and significant hardship” on him “in relation to the ordinary incidents of prison life.” 9 Sandin, 515 U.S. at 484. At most, Plaintiff claims he was “placed in Ad-Seg” for an 10 unspecified length of time after a cell search revealed weapons hidden inside his cell wall, 11 and that he was subsequently transferred to a “180 level IV” institution. (See Compl. at 3.) 12 But administrative segregation and transfer to a level IV prison do not by themselves rise 13 to the level of an “atypical and significant hardship.” See Sandin, 515 U.S. at 486 (finding 14 30 days of disciplinary segregation did not “present the type of atypical, significant 15 deprivation in which a State might conceivably create a liberty interest.”); see also 16 Meachum v. Fano, 427 U.S. 215, 225 (1976) (“[T]he Due Process Clause in and of itself 17 [does not] protect a duly convicted prisoner against transfer from one institution to another 18 within the state prison system. […] That life in one prison is much more disagreeable than 19 in another does not in itself signify that a Fourteenth Amendment liberty interest is 20 implicated when a prisoner is transferred to [an] institution with the more severe rules.”); 21 Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007) (classification of inmate at a “level 22 IV” prison rather than at a “level III” prison did not present an “atypical and significant 23 hardship.”) Instead, Plaintiff must allege facts sufficient to show a “dramatic departure” 24 from the standard conditions of confinement before due process concerns are implicated. 25 Sandin, 515 U.S. at 485–86; Myron, 476 F.3d at 718; see also Fiorito v. Entzel, 2019 WL 26 1446403, at *5 (C.D. Cal. Mar. 27, 2019) (“Transfer to a prison with more violence and 27 lockdowns [ ] does not amount to an atypical and significant hardship.”) (citations omitted), 28 report and recommendation adopted, 2019 WL 1438067 (C.D. Cal. Mar. 29, 2019), aff’d, 1 845 F. App’x 706 (9th Cir. 2021); Hubbard v. Warden of Wasco State Prison, 2015 WL 2 2345457, at *4 (E.D. Cal. May 14, 2015) (“That a higher security yard is more restrictive 3 or houses more violent inmates is not sufficient, in and of itself, to demonstrate that it is a 4 condition which imposes atypical and significant hardship on an inmate in relation to the 5 ordinary incidents of prison life.”). 6 As pleaded, Plaintiff’s Complaint fails to define the duration of his placement in Ad- 7 Seg, allege how the discovery of weapons in his cell affected the length of his sentence, or 8 describe how any restrictive conditions imposed after the cell search “work[ed] a major 9 disruption in his environment.” Sandin, 515 U.S. at 486; Brown, 751 F.3d at 987. 10 Therefore, to the extent Plaintiff alleges a violation of due process, his claims against 11 Defendants Gomez, Chadry and Wingo must be dismissed pursuant to 28 U.S.C. 12 §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). See Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d 13 at 1121. 14 F. Cruel and Unusual Punishment 15 Finally, Plaintiff claims Defendant Gomez, Chadry, and Wingo’s acts or omissions 16 amounted to “cruel & unusual punishment.” (See Compl. at 3.) 17 To state a cruel and unusual punishment claim, Plaintiff must allege facts sufficient 18 to satisfy two requirements. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Iqbal, 556 U.S. 19 at 678. First, he must allege his deprivation was “objectively [and] ‘sufficiently serious.’” 20 Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)); see also 21 Peralta v. Dillard, 744 F.3d 1076, 1091 (9th Cir. 2014). Prison conditions are not 22 objectively serious unless they amount to “unquestioned and serious deprivations of basic 23 human needs,” or of the “minimal civilized measure of life’s necessities.” Rhodes v. 24 Chapman, 452 U.S. 337, 347 (1981); Wilson, 501 U.S. at 298‒300. 25 Second, Plaintiff’s Complaint “must contain sufficient factual matter” to 26 demonstrate that each Defendant acted with a sufficiently culpable state of mind, that of 27 “deliberate indifference.” Iqbal, 556 U.S. at 678; Wilson, 501 U.S. at 303; Peralta, 744 28 F.3d at 1091. A prison official acts with deliberate indifference if he “knows of and 1 disregards an excessive risk to the prisoner’s health and safety.” Farmer, 511 U.S. at 837. 2 In other words, the prison official “must both be aware of facts from which the inference 3 could be drawn that a substantial risk of serious harm exists [to the prisoner], and [the 4 prison official] must also draw the inference.” Id. 5 Here, Plaintiff broadly invokes the Eighth Amendment’s proscription of “cruel and 6 unusual punishment” with respect to Defendant Gomez, Chadry, and Wingo’s purported 7 failures to properly inspect and search his cell prior to his placement there. (See Compl. at 8 3.) But he fails to allege how lapses in cell search protocol resulted in the deprivation of 9 an “unquestioned and serious … basic human need[],” or of any of “life’s necessities.” 10 Rhodes, 452 U.S. at 347. Plaintiff further fails to plausibly allege any of these Defendants 11 had a “sufficiently culpable state of mind,” that is, “one of ‘deliberate indifference’ to” his 12 constitutional rights, either when they cleared him for placement in the cell on October 8, 13 2022, or when they later discovered weapons hidden in its walls. Farmer, 511 U.S. at 834 14 (quoting Wilson, 501 U.S. at 302‒03); Iqbal, 556 U.S. at 678. And while Plaintiff alleges 15 he was subsequently stabbed by another inmate at Tehachapi State Prison, see Compl. at 16 3, no where in his Complaint does he allege any of the RJD officials named as parties to 17 this case were responsible for his transfer to Tehachapi, or actually aware that he would 18 face a “substantial risk of serious harm” at that facility. Farmer, 511 U.S. at 837. 19 Therefore, to the extent Plaintiff contends Defendants Gomez, Chadry, and Wingo 20 violated his Eighth Amendment rights, his claims must also be dismissed pursuant to 28 21 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). See Watison, 668 F.3d at 1112; Wilhelm, 22 680 F.3d at 1121. 23 III. CONCLUSION 24 Accordingly, for all the reasons discussed, the Court: 25 1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2). 26 2) ORDERS the Secretary of the CDCR, or his designee, to place a $350 27 encumbrance on Plaintiff’s trust account and to forward installment payments to the Clerk 28 1 || of the Court pursuant to 28 U.S.C. § 1915(b)(2) until the entire filing fee required by 28 2 U.S.C. § 1914 to commence this civil action is paid. See 28 U.S.C. § 1915(b)(1). 3 3) DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 4 ||Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, via 5 Mail, or by forwarding an electronic copy to trusthelpdesk @cdcr.ca.gov. 6 4) DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim 7 |{upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)Gi) and 8 |} 1915A(b)(1); and 9 5) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 10 || which to file an Amended Complaint which cures all the deficiencies of pleading noted. 11 || Plaintiff’s Amended Complaint must be complete by itself without reference to his original 12 ||Complaint. Any Defendant not named and any claim not re-alleged in his Amended 13 ||Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 14 ||v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 15 || pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 16 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 17 ||amended pleading may be “considered waived if not repled.’’). 18 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter a 19 || final Order dismissing this civil action based both on his failure to state a claim upon which 20 || relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure 21 || to prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 22 1/427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the 23 || opportunity to fix his complaint, a district court may convert the dismissal of the complaint 24 dismissal of the entire action.’’). 25 IT IS SO ORDERED. | | | | | 26 Dated: February 24, 2025 on. John A. Houston / United States District Judge 28 14 □□