Thomas v. Chu et al

Filing 5

ORDER Granting Leave to Proceed in Forma Paupers 2 ; Dismissing Complaint for Failure to State a Claim; and Denying 4 Motion for Preliminary Injunction and Temporary Restraining Order. If Plaintiff fails to file an Amended Complaint within the time provided, the Court will enter a final Order dismissing this civil action. Signed by Judge Gonzalo P. Curiel on 9/9/20. (All non-registered users served via U.S. Mail Service & sent to Secretary Ralph Diaz) ( Copy to USM) (dlg)

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Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.203 Page 1 of 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 KEITH THOMAS, CDCR #T-67081, 15 16 17 ORDER: Plaintiff, 13 14 Case No.: 3:20-cv-00245-GPC-BGS vs. (1) GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS [ECF No. 2] CHU, Physician; BASTO, Dietician; POLLAN, Warden; GLYNN, Chief Medical Officer, (2) DISMISSING COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) Defendants. 18 19 AND 20 21 3) DENYING MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER [ECF No. 4] 22 23 24 25 Plaintiff Keith Thomas, currently incarcerated at Richard J. Donovan Correctional 26 Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed a civil rights 27 complaint pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1 at 1. Plaintiff did not 28 pay the filing fee required by 28 U.S.C. § 1914(a) at the time of filing; instead, he 1 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.204 Page 2 of 22 1 submitted a certified Prison Certificate and CDCR Inmate Statement Report, which the 2 Court construes as a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. 3 § 1915(a) (ECF No. 2). Plaintiff has also filed a “Motion Order to Show Cause for a 4 Preliminary Injunction & Temporary Restraining Order (“TRO”),” attached to which are 5 more than a hundred pages of exhibits and two declarations offered in support both of his 6 TRO and his Complaint. See ECF No. 4 at 9‒18, 87‒97. 7 Plaintiff’s Complaint itself is sparse. He alleges he faces “threats of violence” from 8 his cellmate due to his medical vulnerabilities, claims RJD dietician Basto denied him a 9 dietary supplement, and contends Warden Pollan1 failed to immediately place him in the 10 “GP” 2 based on an “agreement [to] withdraw[] [his] 602 appeal.” Compl., ECF No. 1 at 11 3. Plaintiff does not identify specific constitutional bases for any of these claims; but with 12 respect to all three, he refers to the factual allegations contained in the declarations 13 attached to his TRO, and his TRO invokes both the Eighth and Fourteenth Amendments.3 14 Id.; see also ECF No. 4 at 2, 9‒18, 87‒97. Plaintiff seeks an “immediate emergency 15 injunction” requiring his “single cell” and “GP status,” the “renewal of diet[ary 16 supplements],” and $200,000 in general and punitive damages. See Compl. at 7. 17 /// 18 19 20 21 22 23 24 25 26 27 28 1 The Court’s presumes Plaintiff’s Complaint currently misspells Warden Pollard’s name as Pollan. “GP” is an abbreviation for General Population. See Cal. Code Regs., tit. 15 § 3269 (“Inmates shall accept Inmate Housing Assignments (IHAs) as directed by staff. It is the expectation that all inmates double cell, whether being housed in a Reception Center, General Population (GP), an Administrative Segregation Unit (ASU), a Security Housing Unit (SHU), or specialty housing unit. If staff determines an inmate is suitable for double celling, based on the criteria as set forth in this section, the inmate shall accept the housing assignment or be subject to disciplinary action for refusing.”). 2 3 Because Plaintiff explicitly requests that the Court “refer to the attached declaration[s]” in the body of his Complaint, see Compl. at 3, the Court will consider the facts alleged therein as incorporated by reference when determining whether he has stated any plausible claims upon which § 1983 relief may be granted. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.”). 2 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.205 Page 3 of 22 1 I. 2 Motion to Proceed IFP 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. 4 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); Rodriguez v. 7 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner granted leave to proceed 8 IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. 9 Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 10 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 11 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 12 Section 1915(a)(2) 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 18 balance in the account for the past six months, whichever is greater, unless the prisoner 19 has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having 20 custody of the prisoner then collects subsequent payments, assessed at 20% of the 21 preceding month’s income, in any month in which his account exceeds $10, and forwards 22 those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); 23 Bruce, 136 S. Ct. at 629. 24 /// 25 26 4 27 28 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See 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 IFP. Id. 3 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.206 Page 4 of 22 1 Plaintiff has submitted a copy of his CDCR Inmate Statement Report as well as a 2 Prison Certificate completed by an accounting officer at RJD, which the Court construes 3 as his request to proceed IFP. See ECF No. 2; ECF No. 4; 28 U.S.C. § 1915(a)(2); S.D. 4 Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. This certificate and statements show Plaintiff 5 has carried no average monthly balance, has had no monthly deposits credited to his 6 account over the 6-month period immediately preceding the filing of his Complaint, and 7 had no available funds to his credit at the time of filing. See ECF No. 2 at 1. 8 Therefore, the Court GRANTS Plaintiff leave to proceed IFP (ECF No. 2) and 9 assesses no initial partial filing fee.5 See 28 U.S.C. § 1915(b)(1), (b)(4) (providing that 10 “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a 11 civil action or criminal judgment for the reason that the prisoner has no assets and no 12 means by which to pay the initial partial filing fee.”); Bruce, 136 S. Ct. at 630; Taylor, 13 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 The Court takes judicial notice that Plaintiff has been previously denied leave to proceed IFP in this district pursuant to 28 U.S.C. § 1915(g) because he has filed fifteen previous civil actions or appeals dismissed as frivolous, malicious, or because they failed to state a claim upon which relief could be granted. See, e.g., Thomas v. Doe, et al., Civil Case No. 3:19-cv-00729-LAB-BGS (S.D. Cal. June 5, 2019 Order Denying Motion to Proceed IFP and Dismissing Action without prejudice pursuant to 28 U.S.C. § 1915(g) (ECF No. 5 at 5‒7) (documenting Plaintiff’s “strikes”); Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (court “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’”) (citation omitted). “There is, however, an exception to the PLRA’s three-strikes rule, allowing for filing without prepaying the $350 fee when ‘the prisoner is under imminent danger of serious physical injury.’” Andrews v. Cervantes, 493 F.3d 1047, 1049‒50 (9th Cir. 2007) (quoting § 1915(g)). In his sworn declarations, Plaintiff attests that he is and continues to be exposed to “ongoing threats and attack by [his] cellmate” due to the possibility of an “uncontrolled[ed] mishap[]” and his need to wear a diaper due to his incontinence. See Compl. at 3; ECF No. 4 at 10, 12. Specifically, Plaintiff claims his cellmate “ha[s] attack[ed] him verbally,” is “harassing” him about his use of a diaper, and has “confronted [him] in [a] fighting stance about these issues.” See ECF No. 4 at 10, 12, 95‒96. The Court finds these allegations sufficient, when considered as a “threshold procedural question,” to plausibly suggest Plaintiff faced “ongoing danger” of physical injury at the time of filing. See 28 U.S.C. § 1915(g); Andrews, 493 F.3d at 1057 (distinguishing plausible allegations of “imminent danger” exception under § 1915(g) at the “threshold stage” as distinct from the court’s duty to “evaluate the merits of the suit.”); see also Williams v. Paramo, 775 F.3d 1182, 1189-1190 (9th Cir. 2015) (discussing court’s duty to liberally construe a prisoner’s “facial allegations” and determine if complaint “makes a plausible allegation” of imminent or ongoing danger at the time of filing). 4 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.207 Page 5 of 22 1 dismissal of a prisoner’s IFP case based solely on a “failure to pay ... due to the lack of 2 funds available to him when payment is ordered.”). However, the Court directs the 3 Secretary of the CDCR, or his designee, to garnish the $350 total fee owed in this case 4 from Plaintiff’s trust account and to forward the full filing fee owed for this case to the 5 Clerk of the Court in installments pursuant to 28 U.S.C. § 1915(b)(2). 6 II. 7 Initial Screening per 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a 8 preliminary review and initial screening pursuant to 28 U.S.C. § 1915(e)(2) and 9 § 1915A(b). 6 Under these statutes, the Court must sua sponte dismiss a prisoner’s IFP 10 complaint, or any portion thereof, if it is frivolous, malicious, fails to state a claim, or 11 seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 12 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. 13 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The 14 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need 15 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 16 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 17 2012)). 18 “The standard for determining whether a plaintiff has failed to state a claim upon 19 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 20 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 21 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 22 Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 23 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 24 12(b)(6)”). Rules 8(a) and 12(b)(6) require a complaint to “contain sufficient factual 25 26 27 28 6 The “limited office of § 1915(g)” in determining “whether the filing fee must be paid upfront or later, … [is] separate” from the court’s duty to “screen[] out meritless suits early” pursuant to § 1915(e)(2)(B) and § 1915A(b). Williams, 775 F.3d at 1189 (citing Andrews, 493 F.3d at 1056‒57). 5 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.208 Page 6 of 22 1 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 2 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 3 1121. And while the court “ha[s] an obligation where the petitioner is pro se, particularly 4 in civil rights cases, to construe the pleadings liberally and to afford the petitioner the 5 benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing 6 Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply essential 7 elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of 8 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 9 “Courts must consider the complaint in its entirety,” including “documents 10 incorporated into the complaint by reference” to be part of the pleading when 11 determining whether the plaintiff has stated a claim upon which relief may be granted. 7 12 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal. 13 Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ. P. 10(c) 14 (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading 15 for all purposes.”). 16 B. 17 As noted above, Plaintiff’s Complaint broadly outlines what appear to be three Plaintiff’s Allegations 18 separate claims for relief, refers the Court to his declarations and exhibits in support, and 19 names the following Defendants: Dr. Chu, Chief Medical Officer Glynn, Warden Pollan, 20 and a dietician named Basto. See Compl., ECF No. 1 at 2‒3. 21 In Claim 1, Plaintiff alleges he wears a diaper as the result of incontinence, and 22 that this and renders him vulnerable to “threats of violence” at the hands of inmate 23 Thedford, his cellmate, who may be exposed to an “uncontoll[ed] mishap.” Id. at 3. 24 Sometime in 2019, Plaintiff contends he was treated by Dr. King at Alvarado Hospital 25 26 7 27 28 The Court is not, however, required to “to wade through exhibits to determine whether cognizable claims have been stated,” when it screens a complaint pursuant to 28 U.S.C. § 1915(e) and § 1915A. Woodrow v. Cty. of Merced, No. 1:13-cv-01505-AWI, 2015 WL 164427, at *4 (E.D. Cal. Jan 13, 2015). 6 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.209 Page 7 of 22 1 and to have undergone a colonoscopy at “La Jolla San Diego Medical Hospital.” See ECF 2 No. 4 at 87‒88. While he had a “dispute” with inmate Robinson who was his cellmate at 3 the time, Robinson was “moved to CCCMS Building II, and Plaintiff was thereafter left 4 “alo[ne] for two months,” during which he attended follow-up “tele-med” appointments 5 with “different physicians” and was supplied diapers and sanitary supplies. Id. at 88. 6 Plaintiff alleges he is assigned to RJD’s C-Yard in the “EOP Building,” and that 7 Dr. Chu “was assigned to [the] EOP medical clinic.” 8 After his colonoscopy, Plaintiff 8 “was still wearing [a] diaper,” but was given a new cellmate named Thedford. Id. 9 Because Plaintiff “experience[d] the same complaint[s] with … Thedford as he had 10 before with Robinson, Plaintiff “visit[ed] Dr. Chu about [his] incontinen[ce],” and “asked 11 to be place[d] on single cell status.”9 Id. Plaintiff claims Dr. Chu refused “because he can 12 only give single cell status when a person ha[s] an infectious disease … that is 13 contagious.” Id. at 89. Plaintiff also contends Warden Pollan failed to “provide [him] 14 emergency single-cell status,” and is responsible for his plight because Pollan “never 15 respon[ded]” to a Government Claim giving “notice of the circumstance.” See Compl., at 16 17 18 8 19 20 21 22 23 24 25 26 27 28 The Enhanced Outpatient Program (EOP) is for inmates who show “acute onset or significant decompensation of a serious mental disorder” and/or are unable to function in the prison general population. Coleman v. Brown, 28 F. Supp. 3d 1068, 1075 (E.D. Cal. Apr. 10, 2014) (internal quotations and citation omitted). 9 Plaintiff does not allege when he first requested a single-cell recommendation from Dr. Chu, but the Government Claim Form he alleges to have addressed to Warden Pollan reports the date of Dr. Chu’s denial as January 2, 2020. See ECF No. 4 at 9‒10, 21. An undated CDCR 602 HC Health Care Grievance Form, Tracking # RJD HC 20000184, also challenging Chu’s denial and requesting “permanent single cell status” based on Plaintiff’s incontinence is also attached as one of his many exhibits. See ECF No. 4 at 175‒178. Plaintiff also includes a February 6, 2020 Institutional Level Rejection Notice of RJD HC 20000184. Id. at 179. This appeal was rejected because it raised issues “outside [] health care jurisdiction.” Id. The Rejection Notice also advised Plaintiff to address his requests for a single cell “through the appropriate custody channels,” and informed him that “[p]er the Health Care Department Operations Manual, Section 3.6.2, Comprehensive Accommodation, except for control of infectious disease or for mental health reasons recommended by a Mental Health Interdisciplinary Treatment Team, housing (single cells, cell housing, dormitory housing) is not considered a medically necessary accommodation and will not be ordered by health care staff.” Id. 7 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.210 Page 8 of 22 1 2; ECF No. 4 at 9‒10, 21‒22.10 2 In Claim 2, Plaintiff claims Dietician Basto “denied the … renewal of [his] diet of 3 Boost,” a nutritional supplement, “which the physician order[ed]” based on his weight 4 loss. See Compl. at 2, 3; see also ECF No. 4 at 90. In support, Plaintiff attaches four 5 separate CDCR 7362 Health Care Service Request Forms, all of which request a renewal 6 of his diet and prescription for Boost, set to expire on January 29, 2020. See ECF No. 4 at 7 124‒130. In his TRO, Plaintiff contends Dr. Chu had previously “order[ed] Boost 8 (resource) because of [his] weight loss,” and “based upon [his] incontinence bow[e]l 9 problem,” but “the responsible nurse did not schedule [him] to visit the physician” for a 10 renewal. See ECF No. 4 at 90. 11 In Claim 3, Plaintiff claims only that Warden Pollan “failed to immediately make 12 [him] G.P.” based on an “agreement” to withdraw [a] 602 appeal.” See Compl. at 3; ECF 13 No. 4 at 11. In support, Plaintiff refers to Exhibit D attached to his TRO. See ECF No. 4 14 at 11, 43‒59. This exhibit is comprised of two separate CDCR 602 Inmate/Parolee 15 Appeals, Log No. RJD-C-19-5685, dated September 7, 2019, and Log No. RJD-C-19- 16 7725, dated December 5, 2019. Id. at 46, 56. In Log No. RJD-C-19-5685, Plaintiff asked to “rescind” his SNY status, 11 and to 17 18 19 10 20 21 22 23 24 25 26 27 28 The Court notes Plaintiff’s Government Claim is not addressed to nor does it mention Warden Pollan. See ECF No. 4 at 21‒22. Instead, Plaintiff’s California Government Claim appears to have been mailed to the California Office of Risk and Insurance Management in West Sacramento. See ECF No. 4 at 22; see also Jenkins v. Micks, No. 1:14-CV-3522 (NJV), 2014 WL 6241217, at *3 (N.D. Cal. Nov. 14, 2014) (“Under California Government Code section 945.4, “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented ... until a written claim therefor has been presented to the public entity and has been acted upon by the [Government Claims] board, or has been deemed to have been rejected by the board.”). 11 Plaintiff does not explain the difference between inmates designated for housing in the general population and those designated for a sensitive needs yard. However, in late 2017, the CDCR and California Correctional Health Care Services (“CCHCS”) initiated a “Statewide Non-Designated Enhanced Outpatient Program and Inpatient Treatment Initiative,” indicating they would “no longer recognize the classification designations of Sensitive Needs Yard (“SNY”) or General Population (“GP”) for housing EOP and inpatient inmates.” See Poslof v. Martel, No. 3:18-CV-761-MMA-AGS, 2019 WL 2008855, at *1 (S.D. Cal. May 7, 2019); see also Montalvo v. Diaz, No. 3:19-CV-00363-CAB-JLB, 2020 8 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.211 Page 9 of 22 1 be re-designated for GP status within [the] EOP Program.” Id. at 46. This appeal appears 2 to have proceeded to a second level of review, and was withdrawn by Plaintiff on 3 November 8, 2019, based on a “meet[ing] with [Plaintiff’s] assign[ed] CCI.” Id. at 47. On 4 December 5, 2019, however, Plaintiff filed Log No. RJD-C-19-7725 requesting a second 5 interview about the withdrawal of his 602 “for the purpose of making out a 128-G stating 6 [he] rescind[ed[ [his] SNY” status, and was “presently a GP inmate with GP status.” Id. 7 at 56. This appeal was partially granted via a Second Level Appeal Response dated 8 December 20, 2019. Id. at 54‒55. Plaintiff was re-interviewed and issued a CDC 128-G 9 Classification Chrono documenting his request to rescind his SNY status, acknowledging 10 that he “fully underst[ood] the ramifications of having been housed in SNY” and the fact 11 that he “could possibly run into some problems on a GP yard after having been housed on 12 an SNY.” Id. at 51. Plaintiff was also advised that his request would be reviewed at his 13 “next Unit Classification Committee (UCC),” and he could further submit his appeal for a 14 Third Level of Review. Id. at 55. Plaintiff’s Second Level Appeal Response is signed by 15 Acting Warden M. Pollard. Id. Plaintiff now claims, however, that “this is not what [he] 16 agree[d] to []or request[ed]” when he withdrew his original appeal, and as a result he 17 faces an ongoing risk of attack by a “GP inmate, against EOP/SNY inmates in Building 18 14.” See ECF No. 4 at 94‒95. 19 C. 20 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 42 U.S.C. § 1983 21 elements: (1) that a right secured by the Constitution or laws of the United States was 22 violated, and (2) that the alleged violation was committed by a person acting under the 23 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030, 24 25 26 27 28 WL 3469365, at *7 (S.D. Cal. June 25, 2020) (discussing CDCR’s non-designated housing policy and dismissing former GP prisoner’s allegations that decisions to “merge” prison yards “ha[d] always resulted in violence when … attempted in the past” as insufficient to state a plausible Eighth Amendment claim for relief). 9 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.212 Page 10 of 22 1 1035-36 (9th Cir. 2015). 2 D. 3 As noted above, Plaintiff does not identify the constitutional bases for any of his Fourteenth Amendment Due Process Claims 4 claims in his Complaint, but he does invoke both the Fourteenth and Eighth Amendments 5 in his Motion for TRO. See ECF No. 4 at 2. To the extent he implies Warden Pollan and 6 Chief Medical Officer Glynn violated his due process rights with respect to any of the 7 CDCR 602 grievances or appeals he filed or withdrew challenging Dr. Chu’s refusal to 8 medically authorize his single-cell status or Dietician Basto’s failure to renew his 9 prescription for Boost however, Plaintiff fails to allege any viable due process violation. 10 11 See Iqbal, 556 U.S. at 678. For example, Plaintiff claims only broadly that Pollan refused to “make [him] GP 12 immediately,” and failed to “provide an emergency single cell” for him based on a 13 “agreement” related to the withdrawal of his CDCR 602 appeal. See Compl. at 2, 3. He 14 likewise seeks to hold Glynn liable for failing to grant him single cell status or to 15 “provide renewal of [his] diet,” id. at 2, but does not otherwise explain Glynn’s 16 involvement at all‒except to say that he had the “authority to modif[y]” Dr. Chu and 17 dietician Basto’s decisions and did not “correct []or remedy” those party’s actions. See 18 ECF No. 4 at 12. 19 The Fourteenth Amendment’s Due Process Clause protects persons against 20 deprivations of life, liberty, or property; and those who seek to invoke its procedural 21 protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 22 U.S. 209, 221 (2005). But it does not “protect every change in the conditions of 23 confinement having a substantial impact on the prisoner.” Sandin v. Conner, 515 U.S. 24 472, 478 (1995). Instead, process is due only before changes that inflict an “atypical and 25 significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. 26 at 484. 27 28 Plaintiff does not allege to have been deprived of any protected liberty or property interest with respect to either his housing assignment or his medical diet. See e.g., 10 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.213 Page 11 of 22 1 Meachum v. Fano, 427 U.S. 215, 224–25 (1976) (no liberty interest in placement in 2 particular facility); Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993) (no Due Process 3 right to be housed in a certain barrack or housing unit or with certain inmates); Ardds v. 4 Hicks, No. 1:18-CV-01324-NONE-BAM (PC), 2020 WL 4547119, at *8 (E.D. Cal. Aug. 5 6, 2020) (same); Powers v. Washington Dep’t of Corr., No. C11-5806 RBL/KLS, 2013 6 WL 1755790, at *20 (W.D. Wash. Mar. 29, 2013) (finding no due process liberty interest 7 in changes to inmate’s diet), report and recommendation adopted, No. C11-5806 8 RBL/KLS, 2013 WL 1755787 (W.D. Wash. Apr. 24, 2013). And “‘[r]uling against a 9 prisoner on an administrative complaint,” which appears to be the sole basis upon which 10 Plaintiff seeks to hold Pollan and Glynn liable, “does not cause or contribute to the 11 violation.’” Ellington v. Clark, No. 09cv54-OWW-DLB PC, 2010 WL 3001427, at *2 12 (E.D. Cal. Jul. 29, 2010) (quoting George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007)). 13 Thus, to the extent Plaintiff faults Pollard or Glynn for having failed to grant him 14 either single-cell status or the renewal of his Boost nutritional supplements via 602 15 inmate appeal and health care grievances, his allegations without more, do not state 16 viable constitutional claim. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 17 (prisoners do not have a “separate constitutional entitlement to a specific prison grievance 18 procedure.”) (citation omitted); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (due 19 process not violated simply because defendant fails properly to process grievances 20 submitted for consideration); see also Todd v. California Dep’t of Corr. and 21 Rehabilitation, 615 Fed. Appx. 415, 415 (9th Cir. 2015) (district court properly dismissed 22 claim based on improper “processing and handling of […] prison grievances,” since 23 prisoners have no “constitutional entitlement to a specific prison grievance procedure”) 24 (citing Ramirez, 334 F.3d at 860) (quotation marks omitted); Shallowhorn v. Molina, 572 25 Fed. Appx. 545, 547 (9th Cir. 2014) (district court properly dismissed section 1983 26 claims against defendants who “were only involved in the appeals process”) (citing 27 Ramirez, 334 F.3d at 860); Daniels v. Aguilera, 2018 WL 558658, at *1 (E.D. Cal. Jan. 28 24, 2018), report and recommendation adopted sub nom. Daniels v. Aguillera, 2018 WL 11 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.214 Page 12 of 22 1 1763311 (E.D. Cal. Apr. 12, 2018) (“Because there is no right to any particular grievance 2 process, it is impossible for due process to have been violated by ignoring or failing to 3 properly process prison grievances.”). 4 Accordingly, the Court finds Plaintiff’s Fourteenth Amendment due process claims 5 must be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). See 6 Iqbal, 556 U.S. at 678-79 (citations omitted); Valdivia v. Tampkins, Case No. EDCV 16- 7 1975 JFW(JC), 2016 WL 7378887, at *6 (C.D. Cal. Dec. 19, 2016) (sua sponte 8 dismissing claims predicated upon the alleged improper processing of inmate 9 grievances); Morgan v. Borders, Case No. EDCV 17-57 JFW(JC), 2018 WL 2213455, at 10 *6 (C.D. Cal. May 14, 2018) (dismissing allegations that inmate appeals officials 11 “allowed transgender discrimination to continue ... unabated” when they denied 12 plaintiff’s grievance alleging discrimination as insufficient to state a viable § 1983 13 claim); Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 14 E. 15 To the extent Plaintiff seeks to hold Defendants Pollan, Chu, Glynn, or Basto liable Eighth Amendment Claims 16 for violating his Eighth Amendment rights with respect to either his cell assignment or 17 his dietary needs, the Court also finds his Complaint fails to allege a plausible claim upon 18 which § 1983 relief can be granted. See Iqbal, 556 U.S. at 678; Lopez, 203 F.3d at 1126- 19 27; Rhodes, 621 F.3d at 1004. 20 The Eighth Amendment’s prohibition against cruel and unusual punishment 21 imposes a duty on prison officials to “provide humane conditions of confinement.” 22 Farmer v. Brennan, 511 U.S. 825, 832 (1994). These include “food, clothing, shelter, 23 sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 24 1107 (9th Cir. 1986), abrogated in part on other grounds by Sandin, 515 U.S. 472; see 25 also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). “The Constitution does not 26 mandate comfortable prisons, but neither does it permit inhumane ones.” Farmer, 511 27 U.S. at 832. 28 A prisoner does not have an Eighth Amendment right to be housed in a single cell. 12 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.215 Page 13 of 22 1 See Rhodes v. Chapman, 452 U.S. 337, 347-48 (1981) (double-celling does not violate 2 Eighth Amendment unless it amounts to unnecessary and wanton pain). Nor is there a 3 Fourteenth Amendment right to claim a particular security classification or housing 4 classification. See Meachum v. Fano, 427 U.S. 215, 224–25 (1976) (no liberty interest 5 protected by the Due Process Clause is implicated in a prison’s reclassification and 6 transfer decisions); see also Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007). 7 Neither the Eighth nor the Fourteenth Amendment endows prisoners with a right to be 8 housed in a particular part of the prison or with a particular inmate. See Meachum, 427 9 U.S. at 224–25 (no liberty interest in placement in particular facility); Allen v. Purkett, 5 10 F.3d 1151, 1153 (8th Cir. 1993) (no Due Process right to be housed in a certain barrack 11 or housing unit or with certain inmates); Bjorlin v. Hubbard, No. CIV S–09–1793, 2010 12 WL 457685, *1 (E.D. Cal. Feb. 4, 2010) (same). 13 Instead, to properly plead “cruel and unusual” punishment, Plaintiff must allege 14 facts which demonstrate that he was confined under conditions posing a risk of 15 “objectively, sufficiently serious” harm and that prison officials had a “sufficiently 16 culpable state of mind.” Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995). There is 17 both an objective and subjective component to the inquiry. Hallett v. Morgan, 296, F.3d 18 732, 744 (9th Cir. 2002). First, the Eighth Amendment requires Plaintiff to plead facts 19 sufficient to show he was subjected to an objectively serious deprivation of “the minimal 20 civilized measure of life’s necessities.” Farmer, 511 U.S. at 832. The “routine discomfort 21 inherent in the prison setting” is inadequate to satisfy the objective prong of the inquiry. 22 Johnson, 217 F.3d at 731. 23 Second, Plaintiff must allege facts sufficient to plausibly show each official acted 24 with “deliberate indifference” to his health or safety. Farmer, 511 U.S. at 834. This 25 requires him to allege facts demonstrating that the official displayed a subjective 26 indifference “to a substantial risk of serious harm.” Frost v. Agnos, 152 F.3d 1124, 1128 27 (9th Cir. 1998). “Deliberate indifference” is evidenced only when “the official knows of 28 and disregards an excessive risk to inmate health or safety; the official must both be 13 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.216 Page 14 of 22 1 aware of facts from which the inference could be drawn that a substantial risk of serious 2 harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. If an official 3 “should have been aware of the risk, but was not, then the [official] has not [violated a 4 party’s Constitutional rights], no matter how severe the risk.” Gibson v. County of 5 Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002); Farmer, 511 U.S. at 838 (“[A]n official’s 6 failure to alleviate a significant risk that he should have perceived but did not, while no 7 cause for commendation, cannot under [the Eighth Amendment] be condemned as the 8 infliction of punishment.”). 9 1. 10 Single-Cell Status With respect to his cell assignment, Plaintiff appears to claim both Warden Pollan 11 and Dr. Chu are violating his Eighth Amendment rights by failing to authorize his 12 placement in a single cell. See Compl. at 3; ECF No. 4 at 11. But even if the Court 13 assumes Plaintiff’s incontinence is an objectively serious medical condition that could 14 render him potentially eligible for either single-cell housing consideration or dietary 15 supplements, see e.g., Rankins v. Liu, No. 2:15-CV-1164-KJM-DBP, 2019 WL 5260452, 16 at *5 (E.D. Cal. Oct. 17, 2019) (finding prisoner’s permanent incontinence following 17 transurethral resection of the prostate was objectively serious medical need), report and 18 recommendation adopted, No. 2:15-CV-01164-KJM-DBP, 2019 WL 6170635 (E.D. Cal. 19 Nov. 20, 2019), he has failed to allege facts sufficient to show that either Pollan or Dr. 20 Chu acted with “deliberate indifference” to either a serious risk to his health or his safety 21 when they either failed to make him immediately eligible for either accommodation. 22 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 23 1060 (9th Cir. 2004). “[T]he prison official must not only [be alleged to] ‘be aware of the 24 facts from which the inference could be drawn that a substantial risk of serious harm 25 exists,’ but that person ‘must also [be alleged to have] draw[n] the inference.’” Id. at 26 1057 (quoting Farmer, 511 U.S. at 837). 27 28 While Plaintiff alleges he has been subject to threats and harassment by both his past and present cellmate due to the risk of an “uncontrol[ed] mishap,” and that his 14 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.217 Page 15 of 22 1 medical condition makes him fear a physical altercation with his cellmate, he further 2 admits and has attached a copy of the Institutional Level Notice regarding Health Care 3 Grievance Tracking #RJD HC 20000184, in which his request for single-cell status was 4 rejected as “medically unnecessary.” See Compl. at 3; ECF No. 4 at 10, 11, 13, 179. 12 5 Plaintiff does not allege that either Warden Pollan or Dr. Chu played any role in that 6 decision, does not allege that either Pollan or Chu were aware of a serious risk or threat 7 posed by inmate Thedford, and does not allege that either Pollan or Chu actually drew the 8 inference that Plaintiff faced a substantial risk of harm should he remain double-celled 9 with Thedford or any other inmate. See Farmer, 511 U.S. at 837. In fact, Plaintiff does 10 not allege to have been physically harmed as a result of his incontinence at all‒‒either at 11 the hands of his former cellmate or his current one. See Figueroa v. Clark, No. 1:19-CV- 12 00968-BAM PC, 2020 WL 4700806, at *7 (E.D. Cal. Aug. 13, 2020) (generalized fears 13 of attack, violence and intimidation at the hands of fellow prisoners insufficient to sustain 14 a viable Eighth Amendment failure to protect claim in the absence of any physical 15 injury). 16 Moreover, neither Plaintiff’s Complaint nor the Declaration in Support of his TRO 17 includes facts sufficient to put either Warden Pollan or Dr. Chu on notice that bunking 18 with Thedford posed an excessive or obvious risk of harm. Instead, Plaintiff alleges only 19 20 21 22 23 24 25 26 27 28 12 To the extent Plaintiff claims Dr. Chu told him he could “only give single-cell status […] when a person has an infectious disease only that is contagious,” see ECF No. 4 at 88‒89, he also fails to allege facts sufficient to plausibly show Dr. Chu’s deliberate indifference. Disagreements regarding diagnoses, or mere differences of opinion between a prisoner and medical staff, or between medical professionals regarding the proper course of treatment, do not by themselves give rise to a § 1983 claim. Toguchi, 391 F.3d at 1058. “[T]o prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the chosen course of treatment ‘was medically unacceptable under the circumstances,’ and was chosen ‘in conscious disregard of an excessive risk to [the prisoner’s] health.’” Id. (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). Nothing in Plaintiff’s Complaint or his Declarations suggests the medical assessment of his incontinence as non-infectious, or the California Correction Health Services Operations Manual Comprehensive Accommodation regulations designating single-cell housing assignments as “medical necessary” only when required to control infectious disease or as authorized by a Mental Health Interdisciplinary Treatment Team, was medically unacceptable under the circumstances. Id.; see also ECF No. 4 at 179. 15 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.218 Page 16 of 22 1 that Thedford “constantly spray[s] scent into the air when [he] move[s] around,” “say[s] 2 Plaintiff stink[s],” and has taken a “fighting stance” with Plaintiff “about these issues.” 3 See ECF No. 4 at 10. While the Court is sympathetic to Plaintiff’s discomfort, the mere 4 fact that he is subject to derision or shame and fears confrontation as a result does not by 5 itself subject Defendants to liability under the Eighth Amendment. Pulido v. Lunes, No. 6 1:14-CV-01174-DAD-EPG, 2016 WL 336182, at *6 (E.D. Cal. Jan. 28, 2016) (“No case 7 holds that officers can be deliberately indifferent to safety so long as the harm is from a 8 fear of attack, rather than the attack itself.”), report and recommendation adopted, No. 9 1:14-CV-01174-DAD-EPG PC, 2016 WL 1224028 (E.D. Cal. Mar. 29, 2016). 10 For these reasons, the Court finds Plaintiff fails to allege facts sufficient to support 11 an Eighth Amendment failure to protect claim against either Warden Pollan or Dr. Chu. 12 See 28 U.S.C. § 1915(e)(2)(B)(ii), 1915A(b)(1); Lopez, 203 F.3d at 1126-27; Rhodes, 621 13 F.3d at 1004. 14 15 2. Dietary Supplements Finally, to the extent Plaintiff claims Dr. Chu, Dietician Basto, or Chief Medical 16 Officer Glynn violated his Eighth Amendment rights by failing to fulfill his requests for a 17 renewal of his “diet of Boost” nutritional supplements, see Compl. at 3; ECF No. 4 at 13‒ 18 14, he also fails to allege facts sufficient to plausibly show that any of these Defendants 19 personally did so with deliberate indifference to his serious medical needs, or that any 20 failure to continue providing him those supplements caused harm. See Jett v. Penner, 439 21 F.3d 1091, 1096 (9th Cir. 2006); Estelle, 429 U.S. at 104. In fact, while Plaintiff 22 generally attributes the failure to renew his Boost supplements to all three of these 23 parties, see Compl. at 3, ECF No. 4 at 13‒14, he includes no further facts which plausibly 24 suggest any of them were actually aware of or responsible for authorizing such a renewal. 25 See e.g., Graves v. Cal. Dep’t of Corr. & Rehab., No. EDCV 17-1086 JGB (SPx), 2019 26 WL 8168060, at *7 (C.D. Cal. Nov. 14, 2019) (finding conclusory assertions unsupported 27 by further factual allegations insufficient to infer actual knowledge and indifference); 28 Marks v. Does, No. C09-5489 RJB/KLS, 2010 WL 715500, at *5 (W.D. Wash. Feb. 24, 16 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.219 Page 17 of 22 1 2010) (finding conclusory allegations without specific facts regarding defendants’ 2 knowledge insufficient to plead deliberate indifference). In fact, Plaintiff claims it was 3 “the responsible nurse [who] did not schedule [him] to visit the physician [in order to] 4 renew [his] diet” and previous prescription for Boost supplements in response to the 5 CDCR 7362 Health Care Services Request Forms he submitted on various occasions 6 between January 12, 2020, and February 16, 2020. See ECF No. 4 at 90, 120‒130. 7 For these reasons, the Court also finds that Plaintiff has failed to state a plausible 8 Eighth Amendment claim for relief against any named Defendant with respect to his 9 renewed prescription for Boost. See 28 U.S.C. § 1915(e)(2)(B)(ii), 1915A(b)(1); Lopez, 10 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004. 11 F. 12 In light of Plaintiff’s pro se status, the Court grants him leave to amend his Leave to Amend 13 pleading to attempt to sufficiently allege his Eighth Amendment claims. See Rosati v. 14 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro 15 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it 16 is absolutely clear that the deficiencies of the complaint could not be cured by 17 amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). With 18 respect to Plaintiff’s purported Fourteenth Amendment due process claims involving the 19 disposition of any CDCR 602 Inmate/Parolee or Health Care Appeal, however, leave to 20 amend is denied as futile. See Gonzalez v. Planned Parenthood of Los Angeles, 759 F.3d 21 1112, 1116 (9th Cir. 2014) (“Futility of amendment can, by itself, justify the denial of a 22 motion for leave to amend.”). 23 III. Motion for Preliminary Injunction and TRO 24 As noted above, the factual basis for both Plaintiff’s Eighth and Fourteenth 25 Amendment claims, as well as his Motion for Preliminary Injunction and TRO (ECF No. 26 4), are contained and incorporated by reference in two separate Declarations, which he 27 filed together with nearly 200 pages of exhibits. See ECF No. 4 at 6, 9‒18; 87‒98. 28 Plaintiff seeks a TRO and Preliminary Injunction requiring Defendants Pollan, Chu, 17 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.220 Page 18 of 22 1 Basto and Glynn to “make [him] [a] GP inmate,” place him on single-cell status, and the 2 “renewal of [his] diet of (Boost).” Id. at 5. 3 Procedurally, a federal district court may issue emergency injunctive relief only if 4 it has personal jurisdiction over the parties and subject matter jurisdiction over the 5 lawsuit. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) 6 (noting that one “becomes a party officially, and is required to take action in that 7 capacity, only upon service of summons or other authority-asserting measure stating the 8 time within which the party served must appear to defend.”). The court may not attempt 9 to determine the rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. 10 Mitchell, 245 U.S. 229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir. 11 1983). Pursuant to Federal Rule of Civil Procedure 65(d)(2), an injunction binds only 12 “the parties to the action,” their “officers, agents, servants, employees, and attorneys,” 13 and “other persons who are in active concert or participation.” FED. R. CIV. P. 14 65(d)(2)(A)-(C). 15 Substantively, “‘[a] plaintiff seeking a preliminary injunction must establish that he 16 is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 17 absence of preliminary relief, that the balance of equities tips in his favor, and that an 18 injunction is in the public interest.” Glossip v. Gross, __ U.S. __, 135 S. Ct. 2726, 2736- 19 37 (2015) (quoting Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 20 (2008)). “The first factor under Winter is the most important—likely success on the 21 merits.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). In addition, “[u]nder 22 Winter, plaintiffs must establish that irreparable harm is likely, not just possible, in order 23 to obtain a preliminary injunction.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 24 1127, 1131 (9th Cir. 2011). 25 Here, and because Plaintiff’s Complaint has not survived the initial sua sponte 26 screening required by 28 U.S.C. § 1915(e)(2) and § 1915A, the United States Marshal has 27 not been directed to effect service on his behalf, and the named Defendants have no 28 actual notice of either of Plaintiff’s Complaint or his motions seeking preliminary 18 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.221 Page 19 of 22 1 injunctive relief. Therefore, the Court cannot grant Plaintiff injunctive relief because it 2 has no personal jurisdiction over any Defendant at this time. See Fed. R. Civ. P. 65(a)(1), 3 (d)(2); Murphy Bros., Inc., 526 U.S. at 350; Zepeda, 753 F.2d at 727-28. A district court 4 has no authority to grant relief in the form of a temporary restraining order or permanent 5 injunction where it has no jurisdiction over the parties. Ruhrgas AG v. Marathon Oil Co., 6 526 U.S. 574, 584 (1999) (“Personal jurisdiction, too, is an essential element of the 7 jurisdiction of a district ... court, without which the court is powerless to proceed to an 8 adjudication.”) (citation and internal quotation omitted). 9 Moreover, in conducting its initial screening, the Court has found Plaintiff’s 10 Complaint fails to state any claim upon which § 1983 relief can be granted and has 11 dismissed it pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Therefore, Plaintiff has 12 necessarily failed to show, for purposes of justifying preliminary injunctive relief, any 13 likelihood of success on the merits of his claims. See Pimental v. Dreyfus, 670 F.3d 1096, 14 1111 (9th Cir. 2012) (“[A]t an irreducible minimum the moving party must demonstrate a 15 fair chance of success on the merits….”) (internal quotation marks and citation omitted); 16 Garcia, 786 F.3d at 740 (“Because it is a threshold inquiry, when ‘a plaintiff has failed to 17 show the likelihood of success on the merits, [courts] ‘need not consider the remaining 18 three [Winter elements].’”) (quoting Ass’n des Eleveurs de Canards et d’Oies du Quebec 19 v. Harris, 729 F.3d 937, 944 (9th Cir. 2013)); see also Williams v. Duffy, et al., Civil 20 Case No. 18-cv-06921-BLF, 2019 WL 95924, at *3 (N.D. Cal. Jan. 3, 2019) (“[Having 21 reached th[e] conclusion [that Plaintiff’s complaint failed to state a claim], the Court need 22 not reach the remainder of the Winter factors.”); Asberry v. Beard, Civil Case No. 3:13- 23 cv-2573-WQH JLB, 2014 WL 3943459, at *9 (S.D. Cal. Aug. 12, 2014) (denying 24 prisoner’s motion for preliminary injunction because his complaint was subject to 25 dismissal pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, and therefore he had not 26 shown he was “likely to succeed on the merits” of any claim, that “the balance of equities 27 tip[ped] in his favor,” or the issuance of an injunction would serve the public interest 28 (citing Winter, 555 U.S. at 20)). 19 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.222 Page 20 of 22 1 Finally, Plaintiff has not, and cannot yet demonstrate, that he is or will be subject 2 to immediate and irreparable harm if an injunction does not issue. He claims generally 3 that he has been “attack[ed] … verbally” by his cellmate and has suffered “mental 4 emotional distress” due to fear of an “uncontrol[ed] mishap,” see ECF No. 4 at 12‒13, 5 14; but he does not allege to have ever been physically injured at the hand of either his 6 former or current cellmates. See Alliance for the Wild Rockies, 632 F.3d at 1131 (“Under 7 Winter, plaintiff[] must establish that irreparable harm is likely, not just possible.”); 8 Goldie’s Bookstore, Inc. v. Superior Court of State of Cal., 739 F.2d 466, 472 (9th Cir. 9 1984) (“Speculative injury does not constitute irreparable injury.”); Rigsby v. State, No. 10 CV 11-1696-PHX-DGC, 2013 WL 1283778, at *5 (D. Ariz. Mar. 28, 2013) (denying 11 prisoner’s TRO based on fear of potential future injury based on past assaults); Chappell 12 v. Stankorb, No. 1:11-CV-01425-LJO, 2012 WL 1413889, at *2 (E.D. Cal. Apr. 23, 13 2012) (denying injunctive relief where prisoner’s claims of injury based on current or 14 future housing decisions were nothing “more than speculative.”), report and 15 recommendation adopted, No. 1:11-CV-01425-LJO, 2012 WL 2839816 (E.D. Cal. July 16 9, 2012). A presently existing actual threat must be shown, even though injury need not 17 be certain to occur. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 18 130-31 (1969); FDIC v. Garner, 125 F.3d 1272, 1279-80 (9th Cir. 1997); Caribbean 19 Marine, 844 F.2d at 674. 20 To meet Fed. R. Civ. P. 65’s “irreparable injury” requirement, Plaintiff must do 21 more than simply allege imminent harm; he must demonstrate it. Caribbean Marine 22 Servs. Co., Inc. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). This requires he allege 23 “specific facts in an affidavits or a verified complaint [which] clearly show” a credible 24 threat of “immediate and irreparable injury, loss or damage.” Fed R. Civ. P. 65(b)(A). 25 “Speculative injury does not constitute irreparable injury sufficient to warrant granting a 26 preliminary injunction.” Id. at 674-75. 27 28 Thus, because Plaintiff has failed to serve the required notice upon the adverse parties, has not shown a likelihood of success on the merits, and has cited only 20 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.223 Page 21 of 22 1 speculative and unsubstantiated fears of potential future harm, the Court DENIES his 2 Motion for Preliminary Injunction and TRO (ECF No. 4). See Dymo Indus. v. 3 Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964) (“The grant of a preliminary 4 injunction is the exercise of a very far reaching power never to be indulged in except in a 5 case clearly warranting it.”). 6 IV. Conclusion and Orders 7 For all the reasons explained, the Court: 8 1. 9 10 GRANTS Plaintiff Leave to Proceed In Forma Pauperis pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 11 Plaintiff’s prison trust account the $350 filing fee owed in this case by garnishing 12 monthly payments from his account in an amount equal to twenty percent (20%) of the 13 preceding month’s income and forwarding those payments to the Clerk of the Court each 14 time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL 15 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 16 ASSIGNED TO THIS ACTION. 17 18 19 20 21 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Ralph Diaz, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 4. DENIES Plaintiff’s Motion for Preliminary Injunction and Temporary Restraining Order (ECF No. 4). 5. DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim 22 upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), 23 and GRANTS him forty-five (45) days leave from the date of this Order in which to file 24 an Amended Complaint which cures all the deficiencies of pleading noted with respect to 25 his Eighth Amendment claims only. Plaintiff’s Amended Complaint must be complete by 26 itself without reference to his original pleading. Defendants not named and any claim not 27 re-alleged in his Amended Complaint will be considered waived. See S.D. Cal. CivLR 28 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th 21 3:20-cv-00245-GPC-BGS Case 3:20-cv-00245-GPC-BGS Document 5 Filed 09/09/20 PageID.224 Page 22 of 22 1 Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 2 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend 3 which are not re-alleged in an amended pleading may be “considered waived if not 4 repled.”). 5 If Plaintiff fails to file an Amended Complaint within the time provided, the Court 6 will enter a final Order dismissing this civil action based both on Plaintiff’s failure to 7 state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 8 and 1915A(b), and his failure to prosecute in compliance with a court order requiring 9 amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 10 not take advantage of the opportunity to fix his complaint, a district court may convert the 11 dismissal of the complaint into dismissal of the entire action.”). 12 13 IT IS SO ORDERED. Dated: September 9, 2020 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 3:20-cv-00245-GPC-BGS

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