Hawkins et al v. San Diego County et al

Filing 9

ORDER: 1) Denying in Part Motion to Proceed In Forma Pauperis [ECF No. 2 ] and Dismissing Complaint as to Plaintiff Dunsmore Pursuant to 28 U.S.C. § 1915(g). 2) Granting in Part Motion to Proceed In Forma Pauperis [ECF No. 2 ] and Dismissing C omplaint as to Plaintiff Hawkins for Failure to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). 3) Denying Motion for ADA Access [ECF No. 3 ]. 4) Denying Motion for Class Certification [ECF No. 4 ]. 5) Deny ing Motion Appointment of Counsel [ECF No. 5 ]. 6) Denying Motion for Temporary Restraining Order [ECF No. 6 ]. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in th is case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). (Order electronically transmitted to Secretary of CDCR). Signed by Judge William Q. Hayes on 2/16/2021. (All non-registered users served via U.S. Mail Service)(ag)

Case 3:20-cv-02200-WQH-KSC Document 9 Filed 02/16/21 PageID.31 Page 1 of 27

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER HAWKINS and
DARYL DUNSMORE,

ORDER

Plaintiffs,

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Case No.: 3:20-cv-2200-WQH-KSC

vs.

1) DENYING IN PART MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2] AND DISMISSING
COMPLAINT AS TO PLAINTIFF
DUNSMORE PURSUANT TO 28
U.S.C. § 1915(g)

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SAN DIEGO COUNTY, SAN DIEGO
COUNTY JAIL, OFFICE OF ASSIGNED
COUNSEL, MICHAEL GARCIA,
WILLIAM TRAINOR, JACKIE
BRADEN, and DOES 1-10,

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Defendants.

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2) GRANTING IN PART MOTION
TO PROCEED IN FORMA
PAUPERIS [ECF No. 2] AND
DISMISSING COMPLAINT AS TO
PLAINTIFF HAWKINS FOR
FAILURE TO STATE A CLAIM
PURSUANT TO 28 U.S.C.
§ 1915(e)(2)(B) AND 28 U.S.C.
§ 1915A(b)

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3) DENYING MOTION FOR ADA
ACCESS [ECF No. 3]

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4) DENYING MOTION FOR CLASS
CERTIFICATION [ECF No. 4]

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5) DENYING MOTION
APPOINTMENT OF COUNSEL
[ECF No. 5]

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6) DENYING MOTION FOR A
TEMPORARY RESTRAINING
ORDER [ECF No. 6]

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Plaintiffs Christopher Hawkins and Daryl Dunsmore, currently incarcerated at the

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San Diego County Jail (“SDCJ”), have filed a pro se civil rights action pursuant 42 U.S.C.

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Section 1983. (See ECF No. 1.) Plaintiffs did not prepay the $400 civil filing fee required

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by 28 U.S.C. Section 1914(a) at the time of filing. They have instead filed a Motion to

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Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (See ECF No.

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2.) Plaintiffs have also filed a Motion for ADA Access (ECF No. 3), a Motion for Class

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Certification (ECF No. 4), a Motion for Appointment of Counsel (ECF No. 5), and a

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Motion for a Temporary Restraining Order (ECF No. 6).

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I.

Motion to Proceed In Forma Pauperis – Plaintiff Daryl Dunsmore

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A.

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“All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County

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Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Dunsmore, however,

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“face an additional hurdle.” Id.

Standard of Review

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In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly

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installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison

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Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to

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proceed IFP in cases where the prisoner:

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. . . has, on 3 or more prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court of the United States that
was dismissed on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief can be granted, unless the prisoner is under imminent
danger of serious physical injury.
28 U.S.C. § 1915(g).
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“This subdivision is commonly known as the ‘three strikes’ provision.” Andrews v.

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King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to § 1915(g), a prisoner with

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three strikes or more cannot proceed IFP.” Id.; see also Andrews v. Cervantes, 493 F.3d

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1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (stating that under the PLRA,

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“[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from

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IFP status under the three strikes rule[.]”). The objective of the PLRA is to further “the

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congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney v.

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Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).

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“Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which

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were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,”

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Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court

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styles such dismissal as a denial of the prisoner’s application to file the action without

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prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).

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When courts “review a dismissal to determine whether it counts as a strike, the style of the

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dismissal or the procedural posture is immaterial. Instead, the central question is whether

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the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-

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Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738

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F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single

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action,” however, courts may “assess a PLRA strike only when the case as a whole is

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dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152

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(9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th

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Cir. 2016)).

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Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit

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of any subsequent IFP civil action or appeal in federal court unless he faces “imminent

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danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051-

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52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation

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that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”).

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///
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B.

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The Court has reviewed the Complaint and finds it contains no “plausible

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allegations” to suggest Dunsmore “faced ‘imminent danger of serious physical injury’ at

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the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). In count

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one, Dunsmore alleges “[t]he Defendants have established law policy and procedures . . .

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[which] obstruct[] Plaintiff’s access to the courts . . . [by allowing] them to make judicial

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decisions although not judicial officers . . . to refuse to file legal documents, block writs,

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legal mail, legal tools, [etc.].” Compl. at 4. In counts two and three, Dunsmore also alleges

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that Defendants have “refused to establish and maintain access to services for individuals

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with disabilities both physical and mental as qualified under the ADA . . . ,” and that

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“Defendants are depriving Plaintiffs of the right to practice their religion. . . .” Id. at 5-6.

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These allegations do not rise to the level of “imminent danger of serious physical injury.”

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See Cervantes, 493 F.3d at 1055.

Discussion

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While Defendants typically carry the initial burden to produce evidence

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demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in

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some instances, the district court docket may be sufficient to show that a prior dismissal

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satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. at

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1120. That is the case here.

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Based on a review of its own docket and other court proceedings available on

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PACER, the Court finds that Daryl Lee Dunsmore, identified as CDCR Inmate #AD-6237,

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while incarcerated, has had three prior civil actions dismissed on the grounds that they were

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frivolous, malicious, or failed to state a claim upon which relief may be granted.

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They are:

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(1) Dunsmore v. San Diego County Sheriff’s Dep’t, et al., Civil Case

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No. 3:11-cv-00083-IEG-WVG (S.D. Cal. Nov. 8, 2011) (Order Dismissing

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Second Amended Complaint for failing to state a claim) (strike one);

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///
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(2) Dunsmore v. State of California, et al., Civil Case No. 2:11-cv-

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07141-DOC-JCG (C.D. Cal. Sept. 4, 2012) (Order Dismissing Second

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Amended Complaint for failing to state a claim) (strike two);

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(3) Dunsmore v. State of California, et al., Civil Case No. 3:12-cv-

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01936-JAH-DHB (S.D. Cal. March 20, 2013) (Order granting IFP and

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Dismissing First Amended Complaint for failing to state a claim and as

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frivolous) (strike three); and

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(4) Dunsmore v. State of California, et al., Civil Case No. 3:20-cv-

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00406-AJB-WVG (S.D. Cal. Aug. 4, 2020) (Order Dismissing First Amended

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Complaint for failing to state a claim) (strike four).

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Accordingly, because Dunsmore has, while incarcerated, accumulated at least three

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“strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced

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imminent danger of serious physical injury at the time he filed his Complaint, he is not

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entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055;

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Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all

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prisoners from accessing the courts; it only precludes prisoners with a history of abusing

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the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin

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v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (stating that “court permission to proceed

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IFP is itself a matter of privilege and not right”). The case is thus DISMISSED as to

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Plaintiff Dunsmore.

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II.

Motion to Proceed in Forma Pauperis – Plaintiff Christopher Hawkins

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All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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For civil cases like this one, filed before December 1, 2020, the civil litigant bringing suit
must pay the $350 statutory fee in addition to a $50 administrative fee. See 28 U.S.C.
§ 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14
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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.

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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to

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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”

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Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185

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(9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C.

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§ 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

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“certified copy of the trust fund account statement (or institutional equivalent) for . . . the

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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

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§ 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

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trust account statement, the Court assesses an initial payment of 20% of (a) the average

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monthly deposits in the account for the past six months, or (b) the average monthly balance

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in the account for the past six months, whichever is greater, unless the prisoner has no

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assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody

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of the prisoner then collects subsequent payments, assessed at 20% of the preceding

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month’s income, in any month in which his account exceeds $10, and forwards those

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payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce,

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136 S. Ct. at 629.

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In support of his IFP Motion, Plaintiff Hawkins has submitted a certified copy of his

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trust account statement pursuant to 28 U.S.C. Section 1915(a)(2) and S.D. Cal. Civ. L.R.

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3.2. Andrews, 398 F.3d at 1119. The Court has reviewed Hawkins’s trust account activity,

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as well as the attached prison certificate verifying his available balances. See ECF No. 2,

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(eff. June. 1, 2016). The $50 administrative fee does not apply to persons granted leave to
proceed IFP, however. Id. This administrative fee increased to $52 for civil cases filed on
or after December 1, 2020, but that portion still does not apply to persons granted leave to
proceed IFP. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020).
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at 4-6. These documents show that Hawkins carried an average monthly balance of $0.37,

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average monthly deposits to his trust account for the six months preceding the filing of this

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action of $0.00, and an available balance of $0.37 at the time of filing. See id. at 4.

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Therefore, the Court GRANTS Hawkins’ Motion to Proceed IFP (ECF No. 2) and

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does not assesses an initial partial filing fee pursuant to 28 U.S.C. Section 1915(b)(1)

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because Hawkins does not have sufficient funds. The Court directs the Watch Commander,

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or their designee, to collect the $350.00 balance of the filing fees required by 28 U.S.C.

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Section 1914 and to forward it to the Clerk of the Court pursuant to the installment payment

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provisions set forth in 28 U.S.C. Section 1915(b)(1).

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III.

Sua Sponte Screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section

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1915A(b)

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A. Standard of Review

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Because Hawkins is a prisoner and is proceeding IFP, his Complaint requires a pre-

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answer screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b). Under

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these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion

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of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

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who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th

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Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The purpose of [screening] is ‘to

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ensure that the targets of frivolous or malicious suits need not bear the expense of

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responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler

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v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule

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of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the familiar

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standard applied in the context of failure to state a claim under Federal Rule of Civil
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Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief

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[is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

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the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

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standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

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B. Hawkins’ Factual Allegations

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In count one, Hawkins alleges that “Defendants are obstructing Plaintiff’s access to

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the courts with erroneous policy written or unwritten which allows them to make judicial

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decisions although not judicial officers.” Compl. at 4. Specifically, Hawkins contends that

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Defendants “refuse to file legal documents, block writs, legal mail legal tools, legal access

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to collateral attack, computer instruction or research access, computer assistance or

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training . . . .” Id. In count two, Hawkins claims Defendants have “failed and refused to

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establish and maintain access to services for individuals with disabilities both physical and

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mental as qualified under the ADA [Americans with Disabilities Act].” Id. At 5. He alleges

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Defendants have done this by “depriving them of all programming, library services,

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religious services, recreational services, entertainment services, educational service[s],

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mental health programs, trusty work services and all manner of service[s] that may

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otherwise be available . . . .” Id. He further contends that Defendants “refuse[] to respond

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to 100s of administrative grievances or take any corrective action holding plaintiffs under

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conditions of punishment for being disabled and depriving them of their constitutional

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protections against such cruel and unusual punishment and equal protection of the

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law . . . .” Id. Lastly, in count three, Hawkins claims that “Defendants are depriving

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Plaintiffs of the right to practice their religion including denial of religious services, books,
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symbolism, participation in social religious services, [and] denial of religious diets . . . .”

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Id. at 6.

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C.

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“Section 1983 creates a private right of action against individuals who, acting under

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color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey,

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263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive

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rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

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Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations

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omitted). “To establish § 1983 liability, a Plaintiff must show both (1) deprivation of a right

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secured by the Constitution and laws of the United States, and (2) that the deprivation was

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committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698

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F.3d 1128, 1138 (9th Cir. 2012).

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D.

42 U.S.C. § 1983

Discussion
1. Individual Causation – Defendants Garcia, Trainor and Braden

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Hawkins names Michael Garcia, William Trainor, and Jackie Braden, employees of

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the Office of Assigned Counsel (OAC), as Defendants and alleges they “established law

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policy and procedures that abridge[] the rights of Plaintiffs,” have “failed and refused to

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establish and maintain access to services for individuals with disabilities,” and are

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“depriving Plaintiffs of the right to practice their religion.” Compl. at 4-6. OAC is a San

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Diego County entity which “conducts business with Defendant San Diego County

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concerning Plaintiff’s due process legal access.” Id. at 2.

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A person deprives another “of a constitutional right, within the meaning of section

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1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to

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perform an act which he is legally required to do that causes the deprivation of which [the

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plaintiff complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Broad and

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conclusory allegations, however, such as the ones put forth in Hawkins’ Complaint, fail to

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plausibly show how, or to what extent, each Defendant may be held individually liable for

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any constitutional injury. See Iqbal, 556 U.S. at 676-77; Jones v. Comm’ty Redev. Agency
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of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege

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with at least some degree of particularity overt acts which defendants engaged in” in order

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to state a claim). Instead, “Plaintiff must plead that each Government-official defendant,

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through [his] own individual actions, has violated the Constitution” in order to plead a

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plausible claim for relief. Iqbal, 556 U.S. at 676-77. “The inquiry into causation must be

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individualized and focus on the duties and responsibilities of each individual defendant

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whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v.

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Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71

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(1976)); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986); Estate of Brooks v. United

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States, 197 F.3d 1245, 1248 (9th Cir. 1999) (stating that “[c]ausation is, of course, a

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required element of a § 1983 claim.”) Here, Hawkins offers no specific factual allegations

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to support a claim that any of these named Defendants were responsible for any specific

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claims Hawkins raises in his Complaint.

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As to the “Does 1-10” Hawkins has named as Defendants, the Federal Rules of Civil

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Procedure do not authorize or prohibit the use of fictitious parties, but Rule 10 does require

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a plaintiff to include the names of all parties in his complaint. See Fed. R. Civ. P. 10(a).

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Courts especially disfavor Doe pleading in an IFP case because in the event the plaintiff’s

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complaint alleges a plausible claim for relief, it is effectively impossible for the United

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States Marshal or deputy marshal to fulfill his or her duty to serve an unnamed defendant.

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See Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d); Walker v. Sumner, 14 F.3d 1415, 1422

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(9th Cir. 1994) (stating that in order to properly effect service under Rule 4 in an IFP case,

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the plaintiff is required to “furnish the information necessary to identify the defendant.”);

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Finefeuiaki v. Maui Cmty. Corr. Ctr. Staff & Affiliates, 2018 WL 3580764, at *6 (D. Haw.

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July 25, 2018) (noting that “[a]s a practical matter, the United States Marshal cannot serve

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a summons and complaint on an anonymous defendant.”).

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“A plaintiff may refer to unknown defendants as Defendant John Doe 1, John Doe

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2, John Doe 3, and so on, but he must allege specific facts showing how each particular

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doe defendant violated his rights.” Cuda v. Employees/Contractors/Agents at or OCCC,
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2019 WL 2062945, at *4 (D. Haw. May 9, 2019). A plaintiff may also seek discovery to

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obtain the names of the Does and later amend his pleading in order to substitute the true

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names of those defendants, unless it is clear that discovery will not uncover their identities,

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or that his complaint is subject to dismissal on other grounds. See Wakefield v. Thompson,

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177 F.3d 1160, 1163 (9th Cir. 1999) (emphasis added) (citing Gillespie v. Civiletti, 629

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F.2d 637, 642 (9th Cir. 1980)).

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Hawkins has named “Does 1-10” but, as with the other named Defendants, he makes

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no specific allegations against any individual Doe in relation to the constitutional violations

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which form the basis of his suit. Simply put, Hawkins fails to link any particular

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constitutional violation to any specific, individual state actor, and he fails to even

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minimally explain how each individual Doe party he seeks to sue personally caused a

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violation of his constitutional rights. See Compl. at 4-6; Iqbal, 556 U.S. at 677. As noted

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above, “[a] plaintiff must allege facts, not simply conclusions, t[o] show that [each

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defendant] was personally involved in the deprivation of his civil rights.” Barren v.

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Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Estate of Brooks, 197 F.3d at

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1248.

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As it stands, Hawkins’ Complaint fails to “plead[] factual content that [would]

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allow[] the court to draw the reasonable inference that [any individual] defendant is liable

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for the misconduct alleged.” Iqbal, 556 U.S. at 678. Accordingly, Defendants Trainor,

20

Garcia, Braden and Does 1-10 must be dismissed.

21

2. Access to Courts

22

Hawkins claims his right to access the courts has been violated because Defendants

23

are making judicial decisions even though they are not judicial officers and are “refus[ing]

24

to file legal documents, block[ing] writs, legal mail, legal tools, legal access to collateral

25

attack, computer instruction or research access . . .” Compl. at 4. Prisoners have a

26

constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996);

27

Bounds v. Smith, 430 U.S. 817, 821 (1977), limited in part on other grounds by Lewis, 518

28

U.S. at 354. The right of access does not require the State, however, to “enable the prisoner
11
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1

to discover grievances,” or even to “litigate effectively once in court.” Id. at 354; see also

2

Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the “inability

3

to file a complaint or defend against a charge”). Instead, Lewis holds:

4
5
6
7
8
9

[T]he injury requirement is not satisfied by just any type of frustrated
legal claim . . . . Bounds does not guarantee inmates the wherewithal to
transform themselves into litigating engines capable of filing everything from
shareholder derivative actions to slip-and-fall claims. The tools it requires to
be provided are those that the inmates need in order to attack their sentences,
directly or collaterally, and in order to challenge the conditions of their
confinement. Impairment of any other litigating capacity is simply one of the
incidental (and perfectly constitutional) consequences of conviction and
incarceration.

10
11

Id. at 354-55; see also Spence v. Beard, No. 2:16-CV-1828 KJN P, 2017 WL 896293, at

12

*2-3 (E.D. Cal. Mar. 6, 2017).

13

In order to state a claim of a denial of the right to access the courts, a prisoner must

14

establish that he has suffered “actual injury,” a jurisdictional requirement derived from the

15

standing doctrine. Lewis, 518 U.S. at 349. An “actual injury” is “actual prejudice with

16

respect to contemplated or existing litigation, such as the inability to meet a filing deadline

17

or to present a claim.” Id. at 348 (citation and internal quotations omitted). Indeed, the

18

failure to allege an actual injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th

19

Cir. 2008) (stating that “[f]ailure to show that a ‘non-frivolous legal claim had been

20

frustrated’ is fatal.”) (quoting Lewis, 518 U.S. at 353 & n.4). In addition to alleging an

21

“actual injury,” Hawkins must also plead facts sufficient to describe the “non-frivolous” or

22

“arguable” nature of underlying claim he contends was lost as result of Defendants’

23

actions. Christopher v. Harbury, 536 U.S. 403, 416 (2002). The nature and description of

24

the underlying claim must be set forth in the pleading “as if it were being independently

25

pursued.” Id. at 417.

26

The factual allegations in Hawkins’ Complaint are insufficient to state an access to

27

courts claim. He has not alleged he suffered any “actual prejudice with respect to

28

contemplated or existing litigation.” Lewis, 518 U.S. at 351-53; Silva v. Di Vittorio, 658
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1

F.3d 1090, 1104 (9th Cir. 2011). Further, although Hawkins claims the Defendants are

2

“obstructing Plaintiffs’ access to the courts with erroneous policy . . . which allows them

3

to make judicial decision although not judicial officers,” and that this policy enables

4

Defendants to “refuse to file legal documents, block writs legal mail, legal tools, legal

5

access to collateral attack,” among other things, he has not provided the Court with the

6

“nature and description” of the claims he wishes to bring nor the “non-frivolous” or

7

“arguable” nature of those claims. Harbury, 536 U.S. at 413-14. Accordingly, the Court

8

finds Hawkins’ access to courts claims must be dismissed for failing to state a plausible

9

claim upon which § 1983 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii),

10

§ 1915A(b)(1); Iqbal, 556 U.S. at 678.

11

3. Americans with Disabilities Act

12

In count two, Hawkins claims Defendants are denying services to disabled inmates,

13

in violation of the Americans with Disabilities Act (“ADA”). Compl at 5. The ADA applies

14

in the prison context. See 42 U.S.C. § 12131(1)(B); U.S. v. Georgia, 546 U.S. 151, 154

15

(2006); see also Pierce v. Cty. of Orange, 526 F.3d 1190, 1214 (9th Cir. 2008) (stating that

16

“[i]t is undisputed that Title II applies to the . . . jails’ services, programs, and activities

17

for detainees.”) In order to state a claim under Title II of the ADA, however, a plaintiff

18

must allege:

19
20
21
22

(1) he ‘is an individual with a disability;’ (2) he ‘is otherwise qualified to
participate in or receive the benefit of some public entity’s services, programs,
or activities;’ (3) he ‘was either excluded from participation in or denied the
benefits of the public entity’s services, programs, or activities, or was
otherwise discriminated against by the public entity;’ and (4) ‘such exclusion,
denial of benefits, or discrimination was by reason of [his] disability.’

23
24

O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007) (citing

25

McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004)), (quoting Thompson v.

26

Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam)).

27

Hawkins may not pursue an ADA claim against the individual Defendants in their

28

individual capacities. See Walsh v. Nevada Dep’t of Human Res., 471 F.3d 1033, 1038 (9th
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1

Cir. 2006) (holding that the “bar on suits against individual defendants” applies to the

2

ADA); Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (holding that the “ADA

3

applies only to public entities.”); see also Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir.

4

2002) (“[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official

5

in [his or] her individual capacity to vindicate rights created by Title II of the ADA.”)

6

Further, to the extent Hawkins includes the County of San Diego, which is a public

7

entity subject to suit under Title II, he nevertheless fails to allege that he suffers from any

8

qualified disability, or that he has been discriminated against “by reason of [that]

9

disability.” O’Guinn, 502 F.3d at 1060. Instead, as noted above, Hawkins offers only vague

10

and conclusory allegations, alleging simply that Defendants “failed and refused to establish

11

and maintain [disabled inmates] access” to various services and have “refus[ed] to respond

12

to 100s of administrative grievances . . . .” Compl. at 5. But to state an ADA claim based

13

on disability discrimination, Hawkins must include factual content to show “either (i)

14

discrimination based on disparate treatment or impact, or (ii) denial of reasonable

15

modifications or accommodations.” Atayde v. NAPA State Hosp., 255 F. Supp. 3d 978,

16

1000 (E.D. Cal. 2017) (citing Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1086

17

(9th Cir. 2004)). To show disparate treatment, he must allege that other non-disabled

18

individuals without his disability were treated more favorably. Id. (citing McGary v. City

19

of Portland, 386 F.3d 1259, 1265–66 (9th Cir. 2004)). To show disparate impact, he must

20

allege that a facially neutral policy has a significantly adverse or disproportionate impact

21

on disabled persons. Id. (citing Lawman v. City & Cty. of San Francisco, 159 F. Supp. 3d

22

1130, 1148 n.11 (N.D. Cal. 2016)). And to show failure to accommodate, he must allege

23

that public entity knew of his disability but failed to provide reasonable accommodations

24

for it. Id. (citing Robertson v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1196 (9th

25

Cir. 2007)); see also Barnett v. Cty. of Los Angeles, No. 2:20-CV-02530-ODW-ASX, 2020

26

WL 5350286, at *5 (C.D. Cal. Sept. 3, 2020). Hawkins makes no such allegations;

27

therefore, his ADA claims must be dismissed. See Iqbal, 556 U.S. at 678.

28

///
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4. Eighth Amendment

2

Hawkins also claims his Eighth Amendment rights have been violated by

3

Defendants’ “failure to establish and maintain access to services for individuals with

4

disabilities, both physical and mental.” Compl. at 5. “Inmates who sue prison officials for

5

injuries suffered while in custody may do so under the Eighth Amendment’s Cruel and

6

Unusual Punishment Clause or, if not yet convicted, under the Fourteenth Amendment’s

7

Due Process Clause.” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir.

8

2016). “[W]hen determining whether the Eighth or Fourteenth Amendment governs an

9

inmate’s claim, ‘[t]he critical juncture is conviction, either after trial or . . . by plea, at

10

which point the state acquires the power to punish and the Eighth Amendment is

11

implicated.’” Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000) (quoting Berry v. City

12

of Muskogee, 900 F.2d 1489, 1493 (10th Cir. 1990)). Thought Hawkins raises his claims

13

under the Eighth Amendment, he is in custody at the county jail. See Compl. at 1, 5.

14

Because it is unclear whether the Eighth or Fourteenth Amendment applies, the Court will

15

analyze Hawkins’ claims under both amendments.

16

The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.”

17

U.S. Const. Amend. VIII. Only “unnecessary and wanton infliction of pain” constitutes

18

cruel and unusual punishment as prohibited by the United States Constitution. Whitley v.

19

Albers, 475 U.S. 312, 319 (1986). In order to state a plausible Eighth Amendment claim

20

for relief, a Plaintiff must allege facts sufficient to show that Defendants acted with

21

‘deliberate indifference.’” Castro, 833 F.3d at 1068; Iqbal, 556 U.S. at 678. “A prison

22

official acts with ‘deliberate indifference . . . only if the [prison official] knows of and

23

disregards an excessive risk to inmate health and safety.’” Toguchi v. Chung, 391 F.3d

24

1051, 1057 (9th Cir. 2004) (quoting Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th

25

Cir. 2002), overruled on other grounds by Castro, 833 F.3d at 1076. “Under this standard,

26

the prison official must not only ‘be aware of facts from which the inference could be

27

drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the

28

inference.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
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1

Hawkins has not sufficiently alleged he was at serious risk of harm. He has not

2

provided sufficient facts to suggest the Defendants’ refusal to “establish and maintain

3

access to services for individuals with disabilities” resulted in “significant injury” or caused

4

“the unnecessary and wanton infliction of pain.” Colwell v. Bannister, 763 F.3d 1060, 1066

5

9th Cir. 2014). Nor has he provided sufficient facts to show the Defendants knew that

6

failing to provide disabled inmates with religious services, entertainment, library access,

7

etc., created a substantial risk of serious harm. Thus, Hawkins’ Eighth Amendment claim

8

fails because he has not alleged sufficient “factual content that allows the court to draw the

9

reasonable inference that [Defendants are] liable for the misconduct alleged.” Iqbal, 556

10

U.S. at 678.

11

Until recently, the Ninth Circuit applied a single “deliberate indifference” test when

12

analyzing claims brought by persons in custody whether they arose under the Eighth or the

13

Fourteenth Amendment. See Castro, 833 F.3d at 1068 (citing Clouthier v. Cnty. of Contra

14

Costa, 591 F.3d 1232 (9th Cir. 2010)). However, in Kingsley v. Hendrickson, 576 U.S. 389

15

(2015), the Supreme Court made clear that proof of an intent or motive to punish is not

16

required for a pretrial detainee to prevail on a claim that his due process rights were violated

17

and concluded that “a pretrial detainee can prevail by providing only objective evidence

18

that the challenged governmental action is not rationally related to a legitimate

19

governmental objective or that it is excessive in relation to that purpose.” Id. at 398. The

20

Ninth Circuit has interpreted Kingsley as “reject[ing] the notion that there exists a single

21

‘deliberate indifference’ standard applicable to all § 1983 claims, whether brought by

22

pretrial detainees or by convicted prisoners.” Castro, 833 F.3d at 1069. The Ninth Circuit

23

held in Castro that an objective standard of reasonableness should apply to failure-to-

24

protect claims under the Fourteenth Amendment, id. at 1070-71, and has since extended

25

the “objective deliberate indifference” standard to Fourteenth Amendment claims of

26

inadequate medical care. See Gordon v. Cty. of Orange, 888 F.3d 1118, 1120 (9th Cir.

27

2018); see also Sandoval v. Cty. of San Diego, No. 18-55289, 2021 WL 116539, at *7 (9th

28

Cir. Jan. 13, 2021) (explaining how Kingsley “cast doubt on [the Ninth Circuit’s] practice
16
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1

of evaluating Eighth Amendment and Fourteenth Amendment claims under the same

2

standard.”).

3

It remains unclear if Kingsley’s objective deliberate indifference standard applies

4

beyond excessive force, failure-to-protect, and medical care claims to encompass all claims

5

raised by a pretrial detainee involving the conditions of his or her confinement. See Cheung

6

v. Sequeira, Civ. No. 17-00257 DKW-KSC, 2017 WL 3431586, at *3 (D. Haw. Aug. 8,

7

2017) (noting that only the Second Circuit has extended Kingsley’s holdings to all pretrial

8

detainee deliberate indifference conditions of confinement claims). After Gordon,

9

however, district courts in the Ninth Circuit have applied the objective deliberate

10

indifference standard to pretrial conditions of confinement claims generally. See, e.g.,

11

Turano v. Cnty. of Alameda, No. 17-cv-06953-KAW, 2018 WL 3054853, at *6 (N.D. Cal.

12

June 20, 2018) (finding the Ninth Circuit’s reasoning in Gordon applies to conditions of

13

confinement claims); Smith v. Cnty. of Riverside Sheriff Dept., No. EDCV 17-1969-DSF

14

(SP), 2019 WL 2880419, at *8 (C.D. Cal. Mar. 1, 2019) (finding that if plaintiff was a

15

pretrial detainee, the objective deliberate indifference standard should apply to his “broader

16

conditions of confinement claims”). Accordingly, in the event Hawkins has not yet been

17

convicted, the Court will also apply the Kingsley standard to his conditions of confinement

18

claims.

19
20
21
22
23
24
25
26

To state a claim for deliberate indifference under the Fourteenth Amendment, a
pretrial detainee must establish the following four elements:
(i) the defendant made an intentional decision with respect to the
conditions under which the plaintiff was confined; (ii) those conditions put
the plaintiff at substantial risk of suffering serious harm; (iii) the defendant
did not take reasonable available measures to abate that risk, even though a
reasonable official in the circumstances would have appreciated the high
degree of risk involved—making the consequences of the defendant’s conduct
obvious; and (iv) by not taking such measures, the defendant caused the
plaintiff’s injuries.

27

Castro, 833 F.3d at 1071. “With respect to the third element, the defendant’s conduct must

28

be objectively unreasonable.” Id. (citing Kingsley, 576 U.S. at 396). The plaintiff must
17
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1

allege “more than negligence but less than subjective intent‒‒something akin to reckless

2

disregard.” Id. The “‘mere lack of due care by a [county] official does not deprive an

3

individual of life, liberty, or property under the Fourteenth Amendment.” Id. (quoting

4

Daniels v. Williams, 474 U.S. 327, 330-31 (1986)).

5

Here, Hawkins fails to allege facts sufficient to plausibly show that the failure to

6

establish and maintain access to services for individuals with mental and physical

7

disabilities put him at substantial risk of suffering serious harm, that Defendants failed to

8

take reasonable measures to abate that risk, or that a reasonable person in the Defendants’

9

position would have appreciated a high risk of harm existed under the circumstances. Id.

10

Instead, Hawkins merely proclaims that the conditions of his confinement in the SDCJ

11

constitute “cruel and unusual punishment.” See Compl. at 5. But without more, these types

12

of conclusory allegations are also insufficient to state a plausible Fourteenth Amendment

13

claim. See Iqbal, 556 U.S. at 679 (stating that “[w]hile legal conclusions can provide the

14

framework of a complaint, they must be supported by factual allegations”).

15

5. Equal Protection

16

Hawkins also alleges in count two that the denial of services to disabled inmates

17

violates the Equal Protection Clause of the Fourteenth Amendment. Compl. at 5. The Equal

18

Protection Clause “is essentially a direction that all persons similarly situated should be

19

treated alike.” See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985);

20

see also Vacco v. Quill, 521 U.S. 793, 799 (1997) (citing Plyler v. Doe, 457 U.S. 202, 216

21

(1982) and Tigner v. Texas, 310 U.S. 141, 147 (1940)); Fraley v. Bureau of Prisons, 1 F.3d

22

924, 926 (9th Cir. 1993) (per curiam). To establish an equal protection violation, Hawkins

23

must demonstrate “that the [challenged action], either on its face or in the manner of its

24

enforcement, results in members of a certain group being treated differently from other

25

persons based on membership in that group.” McLean v. Crabtree, 173 F.3d 1176, 1185

26

(9th Cir. 1999). “Second, if it is demonstrated that a cognizable class is treated differently,

27

the court must analyze under the appropriate level of scrutiny whether the distinction made

28

between the two groups is justified.” Id. (citation and quotations omitted). If the aggrieved
18
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1

party is a member of a protected or suspect class, or otherwise suffers the unequal

2

burdening of a fundamental right, the court applies strict scrutiny. City of Cleburne, 473

3

U.S. at 439-40. “Government actions that do not . . . involve suspect classifications will be

4

upheld if [they] are rationally related to a legitimate state interest.” Fields v. Palmdale Sch.

5

Dist., 427 F.3d 1197, 1208 (9th Cir. 2005).

6

“‘[T]he disabled do not constitute a suspect class for equal protection purposes’” and

7

therefore the questioned government action need only be rationally related to a legitimate

8

government interest. See Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001)

9

(quoting Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996)). Hawkins has not

10

made a sufficient showing that the denial of services he claims are occurring is not

11

rationally related to a legitimate government interest, nor that “members of a certain group

12

[are] being treated differently from other persons based on membership in that group.”

13

McLean, 173 F.3d at 1185. He simply alleges that disabled inmates are being denied certain

14

services, which is not sufficient to plausibly state an Equal Protection claim. “Intentional

15

discrimination means that a defendant acted at least in part because of a plaintiff’s protected

16

status.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (emphasis in original)

17

(quoting Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994)). Accordingly,

18

the Court dismisses this claim pursuant to 28 U.S.C. § 1915A(b)(1) because Hawkins has

19

not plausibly alleged a § 1983 claim upon which relief could be granted. Iqbal, 556 U.S. at

20

678.

21

6. Freedom of Religion

22

In count three, Hawkins claims his right to “freedom of religion” has been violated

23

by Defendants. Compl. at 6. The First Amendment bars the government from, among other

24

things, “making a law prohibiting the free exercise of religion.” Hartmann v. Cal. Dep’t

25

Corrs. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). Although Hawkins does not

26

specifically invoke it, the Court liberally construes Hawkins’ Complaint as attempting to

27

state claims under both the First Amendment and the Religious Land Use and

28

Institutionalized Persons Act (“RLUIPA”). See 42 U.S.C. § 2000cc-1(a); see also Alvarez
19
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1

v. Hill, 518 F.3d 1152, 1157-58 (9th Cir. 2008) (noting that a prisoner need not identify

2

RLUIPA as a cause of action in order to state a claim based upon that law). Section 3 of

3

RLUIPA provides that “[n]o government shall impose a substantial burden on the religious

4

exercise of a person residing in or confined to an institution . . . even if the burden results

5

from a rule of general applicability” absent a showing that the burden imposed is “in

6

furtherance of a compelling government interest” and “is the least restrictive means of

7

furthering . . . that interest.” 42 U.S.C. § 2000cc-1(a).

8

Hawkins’ Complaint fails to state a First Amendment free exercise or RLUIPA claim

9

against Defendants. In order to state a free exercise claim, Hawkins must “show that the

10

government action in question substantially burdens the person’s practice of [their]

11

religion. “A substantial burden places more than an inconvenience on religious exercise; it

12

must have a tendency to coerce individuals into acting contrary to their religious beliefs or

13

exert substantial pressures on an adherent to modify his behavior and to violate his beliefs.”

14

Jones v. Williams, 791 F.3d 1023, 1031-32 (9th Cir. 2015) (internal citations, quotation

15

marks, and alterations omitted). Similarly, the Ninth Circuit has explained that a

16

“‘substantial burden’” sufficient to state a RLUIPA claim is a “‘significantly great

17

restriction or onus upon [religious] exercise,’” and “[i]n the context of a prisoner’s

18

constitutional challenge to institutional policies, [the Ninth Circuit] has held that a

19

substantial burden occurs ‘where the state . . . denies [an important benefit] because of

20

conduct mandated by religious belief, thereby putting substantial pressure on an adherent

21

to modify his behavior and to violate his beliefs.’” Hartmann, 707 F.3d at 1124-25 (quoting

22

San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1039 (9th Cir. 2004);

23

Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005)).

24

Applying either framework, Hawkins has not plausibly alleged how Defendants

25

have placed a substantial burden on his religious exercise, and how, if at all, the conduct

26

alleged “prevented him from fulfilling the commandments” of his religion. Cf. Wolcott v.

27

Bd. of Rabbis, 738 F. App’x 538, 539 (9th Cir. 2018) (explaining that non-conclusory

28

allegations “that [plaintiff’s] possession and use of Jewish artifacts were restricted, such
20
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1

restriction prevented him from fulfilling the commandments of the Jewish faith, and a

2

substantial burden on his exercise of Judaism resulted” were sufficient to survive screening

3

pursuant to 28 U.S.C. Section 1915A). Instead, he simply makes conclusory allegations

4

that “Defendants are depriving Plaintiffs of the right to practice their religion” by denying

5

them religious services, books, symbolism, and diets. Compl. at 6. As a result, Hawkins’

6

First Amendment free exercise and RLUIPA claims in count three of his Complaint must

7

be dismissed for failure to state a claim upon which relief can be granted. See 28 U.S.C.

8

§ 1915(e)(2); 28 U.S.C. § 1915A(b); Iqbal, 556 U.S. at 678.

9

7. Defendant San Diego County

10

Hawkins’ claims against the County of San Diego are also insufficient. In order to

11

establish a county’s liability pursuant to 42 U.S.C. § 1983, “[a] plaintiff[] must show that

12

the challenged conditions were part of a policy, custom or practice officially adopted by

13

defendants.” Upshaw v. Alameda County, 377 F. Supp. 3d 1027, 1032 (N.D. Cal. March

14

27, 3019) (citing Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978)). A

15

plaintiff must also allege that “the policy or custom “evince[s] a ‘deliberate indifference’

16

to the constitutional right and [is] the ‘moving force behind the constitutional violation.’”

17

Id. (citing Rivera v. County of L.A., 745 F.3d 384, 389 (9th Cir. 2014)). “Mere negligence

18

or accident” are not sufficient. Kingsley, 576 U.S. at 395. Here, Hawkins’ Complaint fails

19

to allege that any staff at SDCJ acted pursuant to a county policy or custom. Therefore, he

20

fails to state a claim upon which relief may be granted pursuant to § 1983 as to the County

21

of San Diego.

22

8. Defendants San Diego County Jail and Office of Assigned Counsel

23

To the extent Hawkins names the “San Diego County Jail” and “Office of Assigned

24

Counsel” as Defendants, he fails to state a claim upon which § 1983 relief may be granted.

25

As the Court has noted, “[t]o establish § 1983 liability, a Plaintiff must show both (1)

26

deprivation of a right secured by the Constitution and laws of the United States, and (2)

27

that the deprivation was committed by a person acting under color of state law.” Tsao, 698

28

F.3d at 1138 (emphasis added). “Persons” under § 1983 are state and local officials sued
21
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1

in their individual capacities, private individuals and entities which act under color of state

2

law, and/or the local governmental entity itself; departments of municipal entities are not

3

“persons” subject to suit under § 1983. See Vance v. County of Santa Clara, 928 F. Supp.

4

993, 995-96 (N.D. Cal. 1996) (stating that “[n]aming a municipal department as a

5

defendant is not an appropriate means of pleading a § 1983 action against a municipality”)

6

(citation omitted). The SDCJ and OAC are departments of the County of San Diego;2 they

7

are not “persons” subject to suit under § 1983. See e.g., Salas v. San Diego County Jail,

8

2018 WL 1394283, at *3 (S.D. Cal. Apr. 8, 2016); Jones v. San Diego County Jail, 2013

9

WL 5670923394, at *2 (S.D. Cal. Oct. 15, 2013); Rodriguez v. Cnty. of Contra Costa, 2013

10

WL 5946112, at *3 (N.D. Cal. Nov. 5, 2013) (citing Hervey v. Estes, 65 F.3d 784, 791 (9th

11

Cir. 1995)) (stating that “[a]lthough municipalities, such as cities and counties, are

12

amenable to suit under Monell [v. Dep’t of Social Servs, 436 U.S. 658 (1978)], sub-

13

departments or bureaus of municipalities . . . are not generally considered ‘persons’ within

14

the meaning of § 1983.”). Accordingly, Hawkins’ claims against San Diego County Jail

15

and the Office of Assigned Counsel are dismissed sua sponte for failure to state a plausible

16

claim and for seeking monetary relief against an immune defendant. See 28 U.S.C.

17

§ 1915(e)(2)(B); 28 U.S.C. § 1915A(b).

18

IV.

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No. 4]

Motion for ADA Access [ECF No. 3] and Motion for Class Certification [ECF

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Hawkins has also filed a document entitled “Motion for ADA Access Fed. Rules of

21

Regulations 35.107/CRC 1.100.” See ECF No. 3. The document states: “Plaintiffs

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24
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27
28

2

See https://www.sandiegocounty.gov/content/sdc/oac/aboutus.html (last visited Jan. 27,
2021) (“The San Diego County Office of Assigned Counsel (OAC) was established by
County resolution on December 9, 2008, as an independent and ethically separate division
of the Department of the Public Defender. [¶] OAC arranges for high quality legal
representation on behalf of individuals charged with a crime in state court who are entitled
by law to court appointed attorney services but who cannot be represented by the Public
Defender or Alternate Public Defender due to conflict of interest or other issues.”)
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complain that they have made requests to access court ADA coordinator according to fed.

2

rule of regulations 35.107 and CRC 1.100 and received no response [thereby] being

3

discriminated against as qualified ADA individuals and now motion for clarity on this

4

matter by the court.” Id. He has also filed a Motion for Class Certification. See ECF No. 4.

5

Because the Court has concluded that Hawkins has not stated a plausible claim for relief,

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the motions are DENIED without prejudice.

7

V.

Motion for Appointment of Counsel [ECF No. 5]

8

Hawkins also seeks the appointment of counsel because of the complexity of the

9

case. (Mot. to Appt. Counsel, ECF No. 3 at 1.) There is no constitutional right to counsel

10

in a civil case. Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez,

11

560 F.3d 965, 970 (9th Cir. 2009). And while 28 U.S.C. § 1915(e)(1) grants the district

12

court limited discretion to “request” that an attorney represent an indigent civil litigant,

13

Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004), this discretion

14

may be exercised only under “exceptional circumstances.” Id.; see also Terrell v. Brewer,

15

935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances requires the

16

Court “to consider whether there is a ‘likelihood of success on the merits’ and whether ‘the

17

prisoner is unable to articulate his claims in light of the complexity of the legal issues

18

involved.’” Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer,

19

560 F.3d at 970).

20

As currently pleaded, Hawkins’ Complaint demonstrates neither the likelihood of

21

success nor the legal complexity required to support the appointment of pro bono counsel

22

pursuant to 28 U.S.C. § 1915(e)(1). See Terrell, 935 F.3d at 1017; Palmer¸560 F.3d at 970.

23

First, while Hawkins may not be formally trained in law, his allegations, as liberally

24

construed, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), show he nevertheless is fully

25

capable of legibly articulating the facts and circumstances relevant to his claims which are

26

not legally “complex.” Agyeman, 390 F.3d at 1103. Second, for the reasons discussed

27

above, Hawkins’ Complaint requires sua sponte dismissal pursuant to 28 U.S.C.

28

§ 1915(e)(2) and § 1915A, and it is simply too soon to tell whether he will be likely to
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succeed on the merits of any potential constitutional claim against any of the named

2

Defendants. Id. Finally, Hawkins states that counsel should be appointed “due to the

3

complexities of a class action [lawsuit].” ECF No. 5 at 1. The Court has denied Hawkins’

4

Motion for Class Certification, as discussed above, and thus this is not a valid reason for

5

the appointment of counsel in this case.

6

Accordingly, the Court finds no “exceptional circumstances” currently exist and

7

DENIES Hawkins’ Motion to Appoint Counsel (ECF No. 5) without prejudice on that

8

basis. See, e.g., Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming denial of

9

counsel where prisoner could articulate his claims in light of the complexity of the issues

10

involved and did not show likelihood of succeed on the merits).

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VI.

Motion for Temporary Restraining Order [ECF No. 6]

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Hawkins also seeks immediate injunctive relief. See Mot. for TRO, ECF No. 6. In

13

his motion, Hawkins makes the same basic allegations as he does in his Complaint. Id. He

14

claims that “without intervention by this Court Plaintiffs will suffer irreparable injury and

15

harm in their cases in that they will continue to be denied fair hearings by way of the denial

16

of the tools necessary to prosecute their claims in opposition” because “the Defendants

17

have developed laws, procedures, regulations or policies that abridge the Plaintiff’s const.

18

rights under California [and] United States.” ECF No. 6 at 2-3. He further states that “the

19

tools defined by the federal courts are access to copying, service and research for

20

meaningful access to the courts.” Id. at 3.

21

To the extent Hawkins seeks a TRO without notice upon an adverse party, he cannot

22

prevail because his submission fails to set out “specific facts in an affidavit or a verified

23

complaint . . . [which] clearly show that immediate and irreparable injury, loss, or damage

24

will result . . . before the adverse party can be heard in opposition.” Fed. R. Civ. P.

25

65(b)(1)(A); Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001) (stating that

26

“injunctive relief is ‘to be used sparingly, and only in a clear and plain case,’” especially

27

when the court is asked to enjoin the conduct of a state agency) (quoting Rizzo v. Goode,

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423 U.S. 362, 378 (1976)).
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Second, a plaintiff seeking a preliminary injunction must establish: (1) a likelihood

2

of succeed on the merits; (2) a likelihood that plaintiff will suffer irreparable harm in the

3

absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that

4

an injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20

5

(2008). “The standard for issuing a temporary restraining order is identical to the standard

6

for issuing a preliminary injunction.” Lockheed Missile & Space Co., Inc. v. Hughes

7

Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995); see also Stuhlbarg Intern. Sales

8

Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (stating

9

that standards for issuing a TRO are “substantially identical” to those for issuing a

10

preliminary injunction). As the movant, Hawkins “must do more than merely allege

11

imminent harm sufficient to establish standing; [he] must demonstrate immediate

12

threatened injury as a prerequisite to preliminary injunctive relief.” Caribbean Marine

13

Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 674-675 (9th Cir. 1988) (noting that speculative

14

injury does not constitute irreparable harm sufficient to warrant granting a preliminary

15

injunction) (internal citations omitted).

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Hawkins’ allegations do not meet these standards. He fails to state a plausible claim

17

for relief and therefore he has not shown any likelihood of success on the merits of those

18

claims. See Pimental v. Dreyfus, 670 F.3d 1096, 1111 (9th Cir. 2012) (stating that “at an

19

irreducible minimum,” the party seeking immediate injunctive relief “must demonstrate a

20

fair chance of success on the merits, or questions serious enough to require litigation”). He

21

has also not established that he will “suffer irreparable harm in the absence of preliminary

22

relief,” nor has he “demonstrated immediate threatened injury.” Winter, 555 U.S. at 20;

23

Caribbean Marine Servs. Co., Inc., 844 F.2d at 674-675. For these reasons, Hawkins’

24

Motion for TRO (ECF No. 6) is DENIED.

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VII.

Conclusion and Orders

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Good cause appearing, the Court:

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1.

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DENIES in part the Motion to Proceed IFP as to Plaintiff Dunsmore pursuant

to 28 U.S.C. Section 1915(g) (ECF No. 2);
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2.

DISMISSES this civil action sua sponte without prejudice as to Plaintiff

2

Dunsmore for failing to prepay the $400 civil and administrative filing fees required by 28

3

U.S.C. § 1914(a) and directs the Clerk of Court to DISMISS Daryl Dunsmore as a plaintiff

4

in this action;

5

3.

6
7

GRANTS in part the Motion to Proceed IFP as to Plaintiff Hawkins pursuant

to 28 U.S.C. § 1915(a) (ECF No. 2);
4.

DIRECTS the Watch Commander for the San Diego Central, or their

8

designee, to collect from Hawkins’ trust account the $350 filing fee owed by collecting

9

monthly payments from Hawkins’ account in an amount equal to twenty percent (20%) of

10

the preceding month’s income and forwarding those payments to the Clerk of the Court

11

each time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

12

PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

13

ASSIGNED TO THIS ACTION;

14
15

5.

DIRECTS the Clerk of the Court to serve a copy of this Order on Watch

Commander, San Diego Central Jail, 1173 Front Street, San Diego, CA 92101;

16

6.

DENIES Hawkins’ Motion for ADA Access (ECF No. 3);

17

7.

DENIES Hawkins’ Motion for Class Certification (ECF No. 4);

18

8.

DENIES Hawkins’ Motion for Appointment of Counsel (ECF No. 5);

19

9.

DENIES Hawkins’ Motion for TRO (ECF No. 6);

20

10.

DISMISSES Hawkins’ Complaint for failing to state a claim upon which

21

relief may be granted pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii) and Section

22

1915A(b)(1).

23

11.

GRANTS Hawkins sixty (60) days leave from the date of this Order in which

24

to file an Amended Complaint which cures all the deficiencies of pleading noted above.

25

Hawkins’ Amended Complaint must be complete by itself without reference to his original

26

pleading. Defendants not named and any claim not re-alleged in his Amended Complaint

27

will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios, Inc. v. Richard

28

Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading
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supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)

2

(noting that claims dismissed with leave to amend which are not re-alleged in an amended

3

pleading may be “considered waived if not repled.”).

4

If Hawkins fails to file an Amended Complaint within the time provided, the Court

5

will enter a final Order dismissing this civil action based both on Hawkins’ failure to state

6

a claim upon which relief can be granted pursuant to 28 U.S.C. Sections 1915(e)(2)(B)(ii)

7

and 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring

8

amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

9

not take advantage of the opportunity to fix his complaint, a district court may convert the

10
11
12

dismissal of the complaint into dismissal of the entire action.”).
IT IS SO ORDERED.
Dated: February 16, 2021

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