Thomas v. Hill et al
Filing
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ORDER: (1) Granting Motion to Proceed in Forma Pauperis (ECF 2 ); (2) Dismissing Complaint Under 28 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b). The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 ba lance of the filing fee owed in this 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 District Judge Andrew G. Schopler on 01/27/2025. (All non-registered users served via U.S. Mail Service)(mef)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Kenneth D. THOMAS,
Case No.: 3:24-cv-1528-AGS-MSB
Plaintiff,
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ORDER: (1) GRANTING MOTION
TO PROCEED IN FORMA
PAUPERIS (ECF 2);
vs.
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J. HILL, et al.,
(2) DISMISSING COMPLAINT
UNDER 28 U.S.C. §§ 1915(e)(2)(B)
AND 1915A(b)
Defendants.
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Plaintiff Kenneth Thomas, an inmate representing himself, has filed a civil-rights
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complaint under 42 U.S.C. § 1983. (ECF 1.) He alleges defendants violated his
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constitutional rights by denying him an “Alternative Custody Placement” and improperly
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calculating his sentence. (ECF 1 at 3.) For the reasons discussed below, the Court grants
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plaintiff’s motion to proceed without prepayment of the filing fee and dismisses the
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complaint without prejudice for failure to state a claim.
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MOTION TO PROCEED IN FORMA PAUPERIS
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Generally, parties instituting civil actions in federal court must pay fees of $405,
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including a $350 filing fee and a $55 administrative fee. See 28 U.S.C. § 1914(a); Judicial
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Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023).
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A party may initiate a civil action without prepaying the required filing fee if the Court
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grants leave to proceed in forma pauperis (IFP) based on indigency. 28 U.S.C. § 1915(a);
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Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Plaintiffs granted leave to
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proceed IFP need not pay the $55 administrative fee, see 28 U.S.C. § 1914(a); Judicial
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Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023),
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but they must eventually repay the entire $350 filing fee in installments, regardless of
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whether their action is ultimately dismissed, see 28 U.S.C. § 1915(b)(2); Bruce v. Samuels,
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3:24-cv-1528-AGS-MSB
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577 U.S. 82, 84 (2016).
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To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit
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regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234
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(9th Cir. 2015). Prisoners must also submit a “certified copy of the [prisoner’s] trust fund
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account statement (or institutional equivalent) for . . . the 6-month period immediately
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preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). Unless the inmate has no
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assets, the Court relies on the certified trust account statement to assess an initial payment
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of 20% of the greater of: (a) “the average monthly deposits” to the account or (b) “the
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average monthly balance in the prisoner’s account” for that same six-month time period.
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See 28 U.S.C. §§ 1915(b)(1) & (4).
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In support of his IFP motion, Thomas provided a signed copy of his prison
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certificate, which shows that, in the six months before he filed suit, Thomas had an average
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monthly balance of $0 and average monthly deposits of $0. (ECF 2, at 4.) Also, at the time
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he filed suit, he had an available account balance of $0. (Id.) Accordingly, the Court
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GRANTS the IFP motion. While the Court assesses no initial payment, Thomas must pay
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the full $350 filing fee in installments as set forth in 28 U.S.C. § 1915(b)(2).
SCREENING
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A.
Legal Standard
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The Court must screen Thomas’s complaint and sua sponte dismiss it to the extent
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that it is frivolous, malicious, fails to state a claim, or seeks damages from defendants who
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are immune. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). “The standard for determining
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whether Plaintiff has failed to state a claim upon which relief can be granted under
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§ 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for
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failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). That is, a
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complaint must “contain sufficient factual matter . . . to state a claim to relief that is
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plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
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omitted). While detailed factual allegations are not required, “[t]hreadbare recitals of the
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elements of a cause of action, supported by mere conclusory statements, do not suffice” to
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state a claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant-
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unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.
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B.
Plaintiff’s Allegations
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Thomas alleges he is a “non-violent inmate” who falls “under AB-109 and
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Pro[positions] 47 and 57.” (ECF 1 at 3.) He thus asked for an Alternative Custody
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Placement, was “accepted” into “Jericho Project,” but was later denied placement there due
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to unspecified “discrimination.” (Id.)
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Thomas alleges unnamed individuals at the Women and Children Services Unit
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“called” Jericho Project “lied” about him, causing his acceptance to be rescinded. (Id.)
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Thomas also appears to allege that prison officials failed to properly calculate his
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sentencing credits and that, “if [his] time was calculated right[,] [he] would be home
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already.” (Id.) He seeks $1,000 in money damages for “every day” he is incarcerated. (Id.)
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C.
Discussion
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Thomas is suing Richard J. Donovan Correctional Facility and Warden J. Hill, in his
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official capacity as the warden of that prison. Thomas lists several constitutional
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amendments as the bases for his claims, including the First, Fifth, Eighth, Eleventh, and
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Fourteenth Amendments. (ECF 1, at 3.) He also references California Penal Code § 1170
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and California Propositions 47 and 57. (Id.)
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1. Eleventh Amendment Immunity
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The Eleventh Amendment bars Thomas’ claims. Federal courts are prohibited from
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hearing a 42 U.S.C. § 1983 lawsuit in which damages are sought against a state, its
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agencies, or individual prisons, absent “a waiver by the state or a valid congressional
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override” of Eleventh Amendment immunity. Dittman v. California, 191 F.3d 1020, 1025
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(9th Cir. 1999). And California has not waived this immunity with respect to § 1983 claims
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brought in federal court. Id. at 1025–26. Thus, Richard J. Donovan Correctional Facility
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must be dismissed as a defendant.
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Eleventh Amendment immunity also extends to Hill, who is sued only in his official
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capacity as the prison warden. “[A] suit against a state official in his or her official capacity
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3:24-cv-1528-AGS-MSB
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is not a suit against the official but rather is a suit against the official’s office.” Michigan
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State Police Dep’t v. Will, 491 U.S. 58, 71 (1989). Thus, suits for money damages against
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state officials acting in their official capacity are barred by the Eleventh Amendment. See
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28 U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)(2) (mandating dismissal of claims that seek
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“monetary relief from a defendant who is immune from such relief”). Compare Hafer v.
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Melo, 502 U.S. 21, 31 (1991) (“[S]tate officials, sued in their individual capacities, are
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‘persons’ within the meaning of § 1983.” (emphasis added)); Iqbal, 556 U.S. at 676
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(“Because vicarious liability is inapplicable to . . . § 1983 suits, [plaintiff] must plead that
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each government-official defendant, through the official’s own individual actions, has
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violated the Constitution.”).
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Thus, the Court dismisses Thomas’s claims against Hill in his official capacity and
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against Donovan prison. Those dismissals are without leave to amend, as these claims are
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barred by the Eleventh Amendment.
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2. Failure to State a Claim
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In addition to the foregoing reasons, the complaint must be dismissed for failing to
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state a claim.
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a. Alternative Custody Placement
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First, Thomas’s failure to receive an alternative custody placement at Jericho Project
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does not rise to a constitutional violation. “The Constitution does not . . . guarantee that the
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convicted prisoner will be placed in any particular prison.” Meachum v. Fano, 427 U.S.
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215, 224 (1976). In fact, a State may constitutionally “confine [an inmate] in any of its
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prisons.” Id. Nor does a prisoner have a “constitutional right to a particular classification
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status.” Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987).
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Even viewed through the prism of equal protection, Thomas’s custody-placement
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allegations do not state a claim. The Fourteenth Amendment’s Equal Protection Clause
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generally requires that “all persons similarly situated should be treated alike.” City of
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Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Plaintiffs may state an
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equal-protection claim by alleging they were (1) intentionally discriminated against based
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on their membership in a protected class, see Lee v. City of Los Angeles, 250 F.3d 668, 686
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(9th Cir. 2001), or (2) intentionally treated differently from similarly situated individuals
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without a rational basis, see Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
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But Thomas merely alleges he was “discriminated against,” without specifying any
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protected-class membership nor differential treatment from similarly situated inmates.
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(ECF 1 at 3.)
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b. Sentence Calculation
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Similarly, Thomas has not stated a constitutional claim for money damages
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regarding the improper calculation of his sentencing credits, even though he asserts that he
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should have already been released. A § 1983 civil action “is barred if success in the action
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would ‘necessarily require the plaintiff to prove the unlawfulness of his conviction or
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confinement.’” Lemos v. County of Sonoma, 40 F.4th 1002, 1005 (9th Cir. 2022) (en banc)
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(quoting Heck v. Humphrey, 512 U.S. 477, 486 (1994)). In this case, Thomas “indirectly
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seeks a judicial determination that necessarily implies the unlawfulness” of the duration of
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his sentence. See Hebrard v. Nofziger, 90 F.4th 1000, 1011 (9th Cir. 2024) (quoting
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Wilkinson v. Dotson, 544 U.S. 74, 81 (2005)). Because Thomas “plainly calls into question
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the proper duration of his confinement,” he must have his conviction overturned on appeal
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or “proceed in habeas first before he can request damages under § 1983.” Hebrard, 90 F.4th
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at 1011–12.
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c. State Criminal Laws
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Finally, Thomas cannot state a § 1983 claim by relying on California Penal Code
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§ 1190, Proposition 47 (codified at California Penal Code § 1170), and Proposition 57
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(codified at Article I, Section 32 of the California Constitution). “Generally, criminal
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statutes do not confer private rights of action.” Bailey v. Clarke, No. 12-cv-1100-IEG
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(KSC), 2012 WL 6720628, at *2 (S.D. Cal. Dec. 21, 2012); see also Ellis v. City of San
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Diego, 176 F.3d 1183, 1189 (9th Cir. 1999) (affirming dismissal of civil claims premised
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on the California Penal Code and California Health and Safety Code, as “these code
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sections do not create enforceable individual rights”). And none of these state provisions
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create a private cause of action nor a basis for civil liability. See, e.g., Stewart v. Borders,
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No. EDCV 19-1369-MWF (KS), 2019 WL 3766557, at *5 (C.D. Cal. Aug. 9, 2019)
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(“Section 1983 complaints challenging the CDCR’s application of Proposition 57 failed to
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allege a cognizable claim under Section 1983 because the crux of the[] complaints
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concerned an alleged violation of state law.”).
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D.
Leave to Amend
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“A district court should not dismiss a pro se complaint without leave to amend unless
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‘it is absolutely clear that the deficiencies of the complaint could not be cured by
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amendment.’” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015). Because Thomas
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is self-represented, he may amend his complaint. If Thomas elects to amend, he should
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separate his allegations by legal claims. For example, if Thomas were to bring claims
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asserting violations of the First, Eighth, and Fourteenth Amendments, he should separate
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each violation into different counts by its constitutional cause of action. For each count (or
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cause of action), Thomas should then identify the specific acts committed by specific
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defendants that form the basis for that count or cause of action.
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CONCLUSION AND ORDER
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Accordingly, the Court orders as follows:
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1. Plaintiff’s motion to proceed in forma pauperis is GRANTED.
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2. The Secretary of the California Department of Corrections and Rehabilitation, or
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the Secretary’s designee, must collect the $350 filing fee owed in this case through monthly
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payments from Thomas’s account in an amount equal to 20% of the preceding month’s
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income and must forward those payments to the Clerk of the Court each time the amount
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in the account exceeds $10. See 28 U.S.C. § 1915(b)(2). All payments must clearly identify
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the name and case number assigned to this action.
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3. The Clerk of the Court must serve a copy of this Order by forwarding an
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electronic copy to trusthelpdesk@cdcr.ca.gov or by U.S. mail to Jeff Macomber, Secretary,
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CDCR, P.O. Box 942883, Sacramento, California 94283-0001.
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4. All claims against defendant Hill (in his official capacity) and defendant
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Richard J. Donovan Correctional Facility are DISMISSED as barred by the Eleventh
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Amendment.
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5. The Complaint is DISMISSED in its entirety for failing to state a claim.
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6. By March 13, 2025, plaintiff Thomas must file any first amended complaint,
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which cures the deficiencies noted in this Order. Any such first amended complaint must
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be complete by itself without reference to Thomas’s original Complaint. See S.D. Cal.
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CivLR 15.1; Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that
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claims dismissed with leave to amend that are not re-alleged in an amended pleading may
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be “considered waived if not repled”).
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If Thomas fails to timely file a first amended complaint, the Court will enter a final
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Order dismissing this civil action based on the dismissal rationales above, see 28 U.S.C.
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§§ 1915(e)(2) and 1915A(b), and failing to prosecute in compliance with a court order, see
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Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage
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of the opportunity to fix his complaint, a district court may convert the dismissal of the
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complaint into dismissal of the entire action.”).
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Dated: January 27, 2025
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___________________________
Hon. Andrew G. Schopler
United States District Judge
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