1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 DAVID THOMPSON, Case No.: 25-cv-01921-AJB-SBC CDCR #AU-9252, 11 ORDER: (1) GRANTING MOTION Plaintiff, 12 TO PROCEED IN FORMA vs. PAUPERIS AND (2) DISMISSING 13 COMPLAINT FOR FAILING TO 14 STATE A CLAIM AND FOR E. TABOADA, RJDCF Litigation SEEKING MONETARY RELIEF 15 Coordinator; M. FREDERICK, RJDCF AGAINST AN IMMUNE Correctional Counselor (CCI); DOES 1‒10, 16 DEFENDANT PURSUANT Mailroom Employees; CDCR, TO 28 U.S.C. §§ 1915(e)(2)(B) 17 Defendants. AND 1915A(b) 18 [Doc. No. 2] 19 20 21 Plaintiff David Thompson, who is proceeding pro se and now incarcerated at the 22 Substance Abuse Treatment Facility (“CSATF”) in Corcoran, California, has filed a civil 23 rights complaint pursuant to 42 U.S.C. § 1983 (Doc. No. 1), together with a motion to 24 proceed in forma pauperis (“IFP”) (Doc. No. 2). Plaintiff claims a Litigation Coordinator, 25 Correctional Counselor, ten unidentified mail room employees, and the California 26 Department of Corrections and Rehabilitation (“CDCR”) violated his First and Fourteenth 27 Amendment rights in May 2024 while he was incarcerated at Richard J. Donovan 28 Correctional Facility (“RJD”) in San Diego, California. (See Doc. No. 1 at 2‒5.) 1 For the reasons explained below, the Court GRANTS Plaintiff leave to proceed IFP, 2 but DISMISSES his complaint sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 3 1915A(b) because it fails to state a claim upon which § 1983 relief can be granted and 4 seeks monetary relief against a defendant who is immune. 5 I. IFP MOTION 6 All parties instituting any civil action, suit, or proceeding in a district court of the 7 United States, except an application for writ of habeas corpus, must pay a filing fee.1 See 8 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire fee at the 9 time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant to 28 10 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 14051 (9th Cir. 2007); cf. 11 Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] IFP 12 application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the fee[s] 13 [a]re paid.”). 14 “While the previous version of the IFP statute granted courts the authority to waive 15 fees for any person ‘unable to pay[,]’ . . . the PLRA [Prison Litigation Reform Act] 16 amended the IFP statute to include a carve-out for prisoners: under the current version of 17 the IFP statute, ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the 18 prisoner shall be required to pay the full amount of a filing fee.’” Hymas, 73 F.4th at 767 19 (quoting 28 U.S.C. § 1915(b)(1)). Section 1915(b) “provides a structured timeline for 20 collecting this fee.” Id. (citing 28 U.S.C. § 1915(b)(1)–(2)). 21 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of 22 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account 23 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 24 the filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d 1113, 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does not apply to persons granted leave to proceed 28 1 1119 (9th Cir. 2005). Using this financial information, the court “shall assess and when 2 funds exist, collect, . . . an initial partial filing fee,” which is “calculated based on ‘the 3 average monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the 4 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly 5 payments of 20 percent of the preceding month’s income credited to the prisoner’s 6 account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). Thus, while 7 prisoners may qualify to proceed IFP without having to pay the statutory filing fee in one 8 lump sum, they nevertheless remain obligated to pay the full amount due in monthly 9 payments. See Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2); 10 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 11 In support of his IFP motion, Plaintiff has submitted a copy of his CDCR Inmate 12 Trust Account Statement Report as well as a prison certificate authorized by a CSATF 13 accounting officer. (See Doc. No. 2 at 4; 6‒10.) See also S.D. Cal. CivLR 3.2; Andrews, 14 398 F.3d at 1119. These documents show Plaintiff maintained an $8.38 average monthly 15 balance, and had $7.93 in average monthly deposits credited to his account over the 6- 16 month period immediately preceding the filing of his complaint. At the time of filing, 17 however, Plaintiff’s available balance was only $1.40. (See Doc. No. 2 at 4, 7.) 18 Based on this showing, the Court GRANTS Plaintiff’s motion to proceed IFP and 19 assesses an initial partial filing fee of $1.67 pursuant to 28 U.S.C. § 1915(b)(1), but 20 DIRECTS the Secretary of CDCR to collect this initial partial fee on the Court’s behalf 21 only if sufficient funds are available in Plaintiff’s account at the time this Order is executed. 22 See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited 23 from bringing a civil action or appealing a civil action or criminal judgment for the reason 24 that the prisoner has no assets and no means by which to pay the initial partial filing fee.”); 25 Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” 26 preventing dismissal of a prisoner’s IFP case based solely on a “failure to pay . . . due to 27 the lack of funds available to him when payment is ordered.”). The CDCR must thereafter 28 collect the full balance of the $350 total fee owed in this case and forward payments to the 1 Clerk of the Court as provided by 28 U.S.C. § 1915(b)(2). 2 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) & 1915A(b) 3 A. Standard of Review 4 Because Plaintiff is a prisoner and is proceeding IFP, his pleading requires a 5 preliminary review pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these 6 statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of 7 it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 8 who are immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 9 U.S.C. § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 2000) (en 10 banc)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. 11 § 1915A(b)). 12 “The standard for dismissal for prisoner claims at screening is the ‘same as the 13 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.’” Long v. 14 Sugai, 91 F.4th 1331, 1336 (9th Cir. 2024) (quoting Watison v. Carter, 668 F.3d 1108, 15 1112 (9th Cir. 2012)); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) 16 (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in 17 the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). 18 Federal Rules of Civil Procedure 8(a) and 12(b)(6) together require a complaint to “contain 19 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 20 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); 21 Wilhelm, 680 F.3d at 1121. 22 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 23 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 24 Iqbal, 556 U.S. at 678. A complaint fails to state a claim if it lacks a “cognizable legal 25 theory” or “sufficient facts . . . to support a cognizable legal theory.” Shroyer v. New 26 Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v. 27 Block, 250 F.3d 729, 732 (9th Cir. 2001)). And while the court “ha[s] an obligation where 28 the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally 1 and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 2 & n.7 (9th Cir. 2010) (citation omitted), it may not “supply essential elements of claims 3 that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 4 268 (9th Cir. 1982). 5 B. Factual Allegations 6 Plaintiff claims a questionnaire from AVA Law Group that included “highly 7 sensitive personal information” related to “the Boy Scouts of America sexual abuse case,” 8 was mailed to him while he was incarcerated at RJD in May 2024, but was “lost by prison 9 staff.” (Doc. No. 1 at 3.) Plaintiff alleges Defendant Taboada, RJD’s Litigation 10 Coordinator, “refused to assist” in helping locate the lost mail, and he never received it. 11 (Id.) “As a result, AVA had to sign and submit the questionnaire on [his] behalf.” (Id.) 12 Plaintiff filed a CDCR 602 inmate grievance requesting $100,000 in compensation 13 for the lost mail on July 22, 2024, but did not receive a response within 60 days. (Id.) When 14 he inquired about the status of his grievance, he claims Correctional Counselor Frederick 15 replied: “I ain’t doing shit for you.” (Id.) Plaintiff contends his grievance remains 16 unanswered, and he now seeks $200,000 in compensatory and punitive damages against 17 the CDCR, Taboada, Frederick, and ten unidentified RJD mailroom employees based on 18 “possible retaliation” and alleged deprivations of his rights to due process and access to the 19 courts pursuant to 42 U.S.C. § 1983. (Id. at 4‒5.) 20 C. Discussion 21 The Court has reviewed Plaintiff’s complaint and for the reasons explained below, 22 finds that it fails to state a plausible claim for relief and seeks monetary relief against an 23 immune defendant pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), (iii) and 1915A(b)(1), (2). 24 See Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121, 1123. 25 1. CDCR 26 First, to the extent Plaintiff seeks to sue the CDCR as the “public entity responsible 27 for the supervision of its employees and agents” (Doc. No. 1 at 2), his claims are subject 28 to dismissal because he seeks monetary relief from a defendant who is immune. See 28 1 U.S.C. §§ 1915(e)(2)(B)(iii); 1915A(b)(2). 2 “The Eleventh Amendment bars suits for money damages in federal court against a 3 state, its agencies, and state officials acting in their official capacities.” Aholelei v. Dep't of 4 Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). Indeed, the Eleventh Amendment 5 prohibits federal courts from hearing a § 1983 lawsuit in which damages or injunctive relief 6 is sought against a state, its agencies (such as CDCR) or individual prisons, absent “a 7 waiver by the state or a valid congressional override.” Dittman v. California, 191 F.3d 8 1020, 1025 (9th Cir. 1999). “The Eleventh Amendment bars suits which seek either 9 damages or injunctive relief against a state, ‘an arm of the state,’ its instrumentalities, or 10 its agencies.” See Fireman's Fund Ins. Co. v. City of Lodi, Cal., 302 F.3d 928, 957 n.28 11 (9th Cir. 2002) (internal quotation and citations omitted). “The State of California has not 12 waived its Eleventh Amendment immunity with respect to claims brought under § 1983 in 13 federal court.” Dittman, 191 F.3d at 1025–26 (citing Atascadero State Hosp. v. Scanlon, 14 473 U.S. 234, 241 (1985)); see also Brown v. Cal. Dep’t. of Corrs., 554 F.3d 747, 752 (9th 15 Cir. 2009) (finding California Department of Corrections and California Board of Prison 16 Terms entitled to Eleventh Amendment immunity). 17 2. Mail Claims Involving Unidentified Does 18 Second, to the extent Plaintiff names Does 1‒10 as parties, but summarily asserts 19 only that these unidentified persons are RJD mail room employees he infers were 20 responsible for “mishandling” his mail (Doc. No. 1 at 2), he fails to state a claim upon 21 which § 1983 relief can be granted. See 28 U.S.C. §§ 1915(e)(2)(b)(ii); 1915A(b)(1). 22 The use of fictitiously named or “Doe” defendants is generally not favored. Gillespie 23 v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (citation omitted). To successfully state a 24 claim for relief, Plaintiff must identify each Doe defendant individually (e.g., Doe 1, Doe 25 2, etc.) and explain the specific actions taken by each defendant that deprived him of his 26 constitutional rights. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“A 27 plaintiff must allege facts, not simply conclusions, t[o] show that [each defendant] was 28 personally involved in the deprivation of his civil rights.”). “A plaintiff may refer to 1 unknown defendants as Defendant John Doe 1, John Doe 2, John Doe 3, and so on, but he 2 must allege specific facts showing how each particular doe defendant violated his rights.” 3 Keavney v. Cnty. of San Diego, Case No.: 3:19-cv-01947-AJB-BGS, 2020 WL 4192286, 4 at *4 (S.D. Cal. July 21, 2020). Prisoners have “a First Amendment right to send and 5 receive mail.” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995). However, the right is not 6 absolute and may be infringed upon by prison officials under certain circumstances. Id.; 7 Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008) (per curiam) (outgoing mail); 8 Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (incoming mail). 9 Plaintiff claims only that unidentified members of RJD’s “prison staff” either failed 10 to deliver or lost mail addressed to him from AVA Law Group on a single occasion in May 11 2024. (Doc. No. 1 at 3.) But isolated instances of interference with mail without further 12 allegation or evidence of improper motive are insufficient to state a constitutional claim. 13 See Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989) (negligent mishandling of 14 inmate mail insufficient to state a constitutional claim); Smith v. Maschner, 899 F.2d 940, 15 944 (10th Cir. 1990) (isolated incidents of mail interference without any evidence of 16 improper motive or resulting interference with the right to counsel or access to the courts 17 do not give rise to a constitutional violation); Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 18 2003) (same); see also Turner v. Gibson, No. 1:11-CV-01395-GBC PC, 2012 WL 439418, 19 at *3 (E.D. Cal. Feb. 9, 2012). 20 Moreover, Plaintiff seeks to hold Does 1–10 liable simply because they are “mail 21 room employees.” (Doc. No. 1 at 2.) He fails to specify what any of the Does either did or 22 failed to do to cause unconstitutional harm, however. Therefore, he fails to state any claim 23 for relief against any of them. See Iqbal, 556 U.S. at 678; see also Leer v. Murphy, 844 24 F.2d 628, 633–34 (9th Cir. 1988) (finding that the focus for § 1983 claims must be on the 25 “individual defendant,” and his individual “duties [and] discretion”); Williams v. Cnty. of 26 Los Angeles Dep’t of Pub. Soc. Servs., Case No. CV 14-7625 JVS (JC), 2016 WL 8730914, 27 at *5 (C.D. Cal. May 2, 2016), report and recommendation adopted, No. CV 14-7625 JVS 28 (JC), 2016 WL 8737230 (C.D. Cal. May 20, 2016) (“Conclusory allegations that an 1 indistinguishable group of defendants essentially engaged in identical misconduct . . . are 2 insufficient to show that plaintiff is entitled to relief from any individual defendant.”). Put 3 another way, a complaint like Plaintiff’s “which ‘lumps together . . . multiple defendants 4 in one broad allegation fails to satisfy [the] notice requirements of Rule 8(a)(2).’” Adobe 5 Sys. v. Blue Source Grp., Inc., 125 F. Supp. 3d 945, 964 (N.D. Cal. 2015) (quoting Gen- 6 Probe, Inc. v. Amoco Corp., 926 F. Supp. 948, 961 (S.D. Cal. 1996)). 7 In sum, regardless of the constitutional basis asserted for Plaintiff’s lost mail claims, 8 he has failed to plead a plausible claim for relief against any individual mail room 9 employee. “[E]ach Government official . . . is only liable for his or her own misconduct.” 10 Iqbal, 556 U.S. at 677. “[A] plaintiff c[an] not hold an officer liable because of his 11 membership in a group without a showing of individual participation in the unlawful 12 conduct.” Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2022). To properly state any claim 13 for relief under section 1983, the plaintiff must plead facts showing how each of the named 14 defendants “personal[ly] participat[ed] in the alleged rights deprivation.” Ewing v. City of 15 Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). Thus, because Plaintiff fails to “set forth 16 specific facts as to each individual [mail room employee’s] deprivation of his rights,” Leer, 17 844 F.2d at 634; Iqbal, 556 U.S. at 678, his complaint requires sua sponte dismissal 18 pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) with respect to Does 1‒10. 19 3. Access to Courts 20 Third, Plaintiff also fails to allege facts sufficient to state an access to courts violation 21 against Defendant Taboada. See 28 U.S.C. §§ 1915(e)(2)(B)(ii); 1915A(b)(1). Specifically, 22 Plaintiff claims Taboada “refused to assist” in delivering the legal questionnaire AVA Law 23 Group had mailed to him for completion, and instead said she “was not going to drop 24 everything she [wa]s doing to help.” (See Doc. No. 1 at 3.) 25 Prisoners have a constitutional right to access to the courts. Lewis v. Casey, 518 U.S. 26 343, 346 (1996). Claims for denial of access to the courts may arise from the frustration or 27 hindrance of “a litigating opportunity yet to be gained” (forward-looking access claim) or 28 from the loss of a suit that cannot now be tried (backward-looking claim). Christopher v. 1 Harbury, 536 U.S. 403, 412‒15 (2002); see also Silva v. Di Vittorio, 658 F.3d 1090, 1102 2 (9th Cir. 2011) (differentiating “between two types of access to court claims: those 3 involving prisoners’ right to affirmative assistance and those involving prisoners’ rights to 4 litigate without active interference”), overruled on other grounds as recognized by Richey 5 v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). 6 However, Plaintiff must allege “actual injury” as the threshold requirement to any 7 access to courts claim. Lewis, 518 U.S. at 351‒53; Silva, 658 F.3d at 1104. An “actual 8 injury” is “actual prejudice with respect to contemplated or existing litigation, such as the 9 inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at 348; see also 10 Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the “inability 11 to file a complaint or defend against a charge”). The “[f]ailure to show that a ‘non-frivolous 12 legal claim had been frustrated’ is fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 13 2008) (quoting Lewis, 518 U.S. at 353 & n.4). 14 Here, Plaintiff must allege Defendant Taboada’s refusal to assist in the delivery of a 15 legal questionnaire sent to him from a law firm for submission in “the Boy Scouts of 16 America sexual abuse case,” caused him actual injury in the pursuit of a “non-frivolous” 17 or “arguable” underlying claim. Harbury, 536 U.S. at 413‒14. The nature and description 18 of the underlying claim must be set forth in his pleading “as if it were being independently 19 pursued.” Id. at 417. However, Plaintiff does not describe his role in the Boy Scouts case, 20 explain the significance of the questionnaire mailed to him, and critically does not allege 21 he was actually injured or prejudiced with respect to that litigation due to its failed delivery. 22 See id. In fact, Plaintiff admits that while he “never received this legal mail,” AVA Law 23 Group was able to “sign and submit the questionnaire on [his] behalf.” (See Doc. No. 1 at 24 3.) Thus, Plaintiff fails to include any “factual matter” to show how or why Defendant 25 Taboada’s refusal to assist in the delivery of any particular piece of mail caused him to 26 suffer any “actual prejudice,” “such as the inability to meet a filing deadline or to present 27 a claim.” Lewis, 518 U.S. at 348; Jones, 393 F.3d at 936; Iqbal, 556 U.S. at 678. This is 28 fatal to the viability of any access to courts violation. See Alvarez, 518 U.S. at 1155 n.1. 1 4. Grievance-Processing & Retaliation 2 Finally, Plaintiff alleges Correctional Counselor Frederick violated his First and 3 Fourteenth Amendments rights by refusing to inquire into the status of his CDCR 602 4 inmate grievance requesting $100,000 in compensation for the lost questionnaire. (See 5 Doc. No. 1 at 3‒5.) Plaintiff contends the failure to “provide a timely or truthful response 6 to [his] grievance” violated his right to due process and Frederick’s “hostile comment” 7 shows “possible retaliation.” (Id. at 4‒5.) 8 Although prisoners have a First Amendment constitutional right to petition for 9 redress via institutional grievance procedures the prison may afford, Bradley v. Hall, 64 10 F.3d 1276, 1279 (9th Cir. 1995), they do not have a protected liberty or property interest 11 in the ways in which their grievances or appeals are processed or resolved. See Ramirez v. 12 Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“[I]nmates do not have a separate constitutional 13 entitlement to a specific prison grievance procedure.”) (citation omitted)); Mann v. Adams, 14 855 F.2d 639, 640 (9th Cir.) (due process not violated simply because defendant fails 15 properly to process grievances submitted for consideration); Shallowhorn v. Molina, 572 16 F. App’x 545, 547 (9th Cir. 2014) (district court properly dismissed § 1983 claims against 17 defendants who “were only involved in the appeals process”; the defendants could not be 18 held liable under § 1983 for denying an inmate appeal (citing Ramirez, 334 F.3d at 860)). 19 In other words, although there is a right to petition government for redress of grievances, 20 “there is no right to a response or any particular action.” Yelenich v. Cate, No. C 09-5073 21 PJH PR, 2011 WL 1100124, at *2 (N.D. Cal. Mar. 23, 2011) (citing Flick v. Alba, 932 F.2d 22 728, 729 (8th Cir. 1991) (“[A] prisoner’s right to petition the government for redress . . . is 23 not compromised by the prison’s refusal to entertain his grievance.”)). 24 Therefore, to the extent Plaintiff claims his lost mail grievance was “missing [a] 25 response,” “time expired,” and went “unanswered despite multiple follow-up requests,” he 26 fails to state a due process claim upon which § 1983 relief can be granted. See 28 U.S.C. 27 §§ 1915(e)(2)(b)(ii), 1915A(b)(1); Montoya v. Mattice-Harris, No. 3:22-cv-00558-ART- 28 CSD, 2023 WL 5023394, at *4 (D. Nev. Jan. 23, 2023) (“Because there is no right to any 1 particular grievance process, it is impossible for due process to have been violated by 2 ignoring or failing to properly process grievances.”); Gallegos v. Murray, No. CV 18-9505- 3 CJC (E), 2019 WL 6729689, at *3 (C.D. Cal. Jan. 14, 2019) (holding that “Plaintiff’s 4 claims based on alleged mishandling or discarding of grievances are legally insufficient” 5 because “inmates lack a separate constitutional entitlement to a specific prison grievance 6 procedure”) (quoting Ramirez, 334 F.3d at 860). 7 Plaintiff also fails to allege a plausible retaliation claim for relief against CCI 8 Frederick. Allegations of retaliation against a prisoner’s First Amendment rights to speech 9 or petition for redress may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 10 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt 11 v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). However, when a prisoner brings a First 12 Amendment retaliation claim, he must assert factual allegations sufficient to show: “(1) ‘a 13 state actor took some adverse action . . . (2) because of (3) [the] prisoner’s protected 14 conduct, . . . that such action (4) chilled [his] exercise of his First Amendment rights, and 15 (5) the action did not reasonably advance a legitimate correctional goal.’” Shepard v. 16 Quillen, 840 F.3d 686, 688 (9th Cir. 2016) (alterations in original) (quoting Rhodes v. 17 Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (footnote omitted)). 18 Here, Plaintiff’s entire basis for a “possible retaliation” claim is that Frederick made 19 a “hostile comment” in response to his inquiries about the status of his grievance. (See Doc. 20 No. 1 at 3, 5.) The filing of a grievance is protected conduct. Rhodes, 408 F.3d at 568; 21 Watison, 668 F.3d at 1114. But Plaintiff fails to explain how Frederick’s stated refusal to 22 “do[] shit for [him]” (see Doc. No. 1 at 3), threatened him with any harm, caused him to 23 suffer adverse action, or “would chill or silence a person of ordinary firmness from future 24 First Amendment activities.” Rhodes, 408 F.3d at 568 (cleaned up); Watison, 668 F.3d at 25 1114. Moreover, even assuming Frederick’s comment was adverse and chilling, Plaintiff 26 does not further allege Frederick refused to inquire into the status of his grievance because 27 Plaintiff had engaged in protected conduct, i.e., that he filed the grievance in the first place. 28 See Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) (“[A] plaintiff 1 alleging retaliation for the exercise of constitutionally protected rights must initially show 2 that the protected conduct was a ‘substantial’ or ‘motivating’ factor in the defendant’s 3 decision.”) (citation omitted). “When the causation element of Rhodes is combined with 4 the pleading requirements of Iqbal, it is apparent that to state a retaliation claim a prisoner 5 must plead sufficient facts to make plausible a claim that the defendants’ actions were 6 motivated by a desire to retaliate for his exercise of a constitutional right, rather than by 7 some other motive.” Clinton v. Allison, No. 3:23-CV-01471-CAB-SBC, 2024 WL 8 1859956, at *9 (S.D. Cal. Apr. 29, 2024) (citing Yelenich v. Cate, No. C 09–5073 PJH, 9 2011 WL 1100124, at *2 (N.D. Cal. Mar. 23, 2011)). 10 Retaliation claims cannot rely solely on an adverse activity following protected 11 speech. See Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000) (explaining that 12 a retaliation claim cannot rest on “the logical fallacy of post hoc, ergo propter hoc, literally, 13 ‘after this, therefore because of this’” (citation omitted)). The mere “fact that grievances 14 submitted by Plaintiff were denied or ignored does not mean that this was done in 15 retaliation for Plaintiff’s exercise of his First Amendment right to file grievances. 16 Retaliatory animus cannot simply be assumed.” Washington v. Luna, No. 2:23-CV-09406- 17 CBM-MAA, 2025 WL 1994572, at *14 (C.D. Cal. May 27, 2025), report and 18 recommendation adopted sub nom. Washington v. Cnty. of Los Angeles, No. 2:23-CV- 19 09406-CBM (MAA), 2025 WL 1994012 (C.D. Cal. July 15, 2025). “To infer from the 20 mere denial of a grievance that the grievance was denied in retaliation for the fact that the 21 grievance was filed would mean that, in practice, no grievance could ever be denied, 22 because the mere fact of denial would give rise to a First Amendment claim for retaliation.” 23 Id. at *14. 24 Therefore, the Court finds Plaintiff’s conclusory and speculative allegations that 25 Frederick’s comments were “possible retaliation” (see Doc. No. 1 at 5), are simply 26 insufficient to sustain any viable claim for relief. See Wood v. Yordy, 753 F.3d 899, 905 27 (9th Cir. 2014) (“[M]ere speculation that defendants acted out of retaliation is not 28 sufficient.”); Peoples v. Schwarzenegger, 402 F. App’x 204, 205 (9th Cir. 2010) (affirming 1 dismissal of plaintiff’s “retaliation claim because his conclusory allegations did not connect 2 any defendant’s alleged misconduct with the alleged infringement of his First Amendment 3 rights”). 4 III. CONCLUSION 5 For the reasons discussed, the Court: 6 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) 7 (Doc. No. 2). 8 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 9 Plaintiff’s trust account the $1.67 initial filing fee assessed, if those funds are available at 10 the time this Order is executed, and forward whatever balance remains of the full $350 11 owed in monthly payments in an amount equal to twenty percent (20%) of the preceding 12 month’s income to the Clerk of the Court each time the amount in his account exceeds $10 13 pursuant to 28 U.S.C. § 1915(b)(2). 14 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 15 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, via 16 U.S. Mail, or by forwarding an electronic copy to [email protected]; 17 4. DISMISSES Plaintiff’s complaint sua sponte and in its entirety based on his 18 failure to state a claim upon which § 1983 relief can be granted and for seeking monetary 19 damages from a defendant who is immune pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), (iii); 20 1915A(b)(1), (2); and 21 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 22 which to file an amended complaint which cures all the deficiencies of pleading noted. 23 Plaintiff’s amended complaint must be complete by itself without reference to his original 24 pleading. Any Defendant not named and any claim not re-alleged in his amended complaint 25 will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 26 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 27 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 28 (noting that claims dismissed with leave to amend which are not re-alleged in an amended 1 || pleading may be “considered waived if not repled.”). 2 If Plaintiff fails to file an amended complaint within 45 days, the Court will enter a 3 Order dismissing this civil action based on his failure to state a claim upon which 4 relief can be granted and for seeking monetary relief against a defendant who is immune 5 ||pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and for failing to prosecute in 6 ||compliance with a court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 7 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his 8 complaint, a district court may convert the dismissal of the complaint into dismissal of the 9 || entire action.”). 10 IT IS SO ORDERED. 11 |] Dated: October 28, 2025 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14