Opinion
3:23-cv-01581-RBM-MSB
07-15-2024
MONA S. MURILLO, CDCR # P43503, Plaintiff, v. CDCR, et al., Defendants.
ORDER:
(1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS;
(2) SCREENING COMPLAINT PURSUANT TO 28 U.S.C. § 1915(E)(2)(B) AND 28 U.S.C. § 1915A(B);
(3) DENYING MOTIONS TO EXPEDITE, REQUEST FOR TEMPORARY RESTRAINING ORDER, AND REQUEST FOR JUDICAL NOTICE
[DOCS. 2, 4-6]
Hon. Ruth Bermudez Montenegro, United States District Judge
Mona S. Murillo (“Plaintiff” or “Murillo”), currently incarcerated at Richard J. Donoval Correctional Facility (“RJD”), is proceeding pro se with a civil rights complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) She filed a Motion to Proceed in Forma Paupers (“IFP”) when filing her Complaint. (Doc. 2.) She later filed requests for expedited 1 screening and temporary restraining order. (Docs. 4, 6.) She separately filed 120 pages of exhibits. (Doc. 5.) Having considered all of Murillo's filings, the Court GRANTS the Motion to Proceed IFP, dismisses some of the claims pursuant to 28 U.S.C. § 1915, GRANTS Murillo leave to file an amended complaint, and DENIES the request for a temporary restraining order.
I. MOTION TO PROCEED IFP
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $405. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff's failure to prepay the entire fee only if she is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” Bruce v. Samuels, 577 U.S. 82, 85 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
In civil actions except for applications for a writ of habeas corpus, civil litigants bringing suit must pay the $350 statutory fee in addition to a $55 administrative fee. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, ¶ 14. The $55 administrative fee does not apply to persons granted leave to proceed IFP, however. Id.
Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which his account exceeds $10, and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 577 U.S. at 85.
In support of her IFP Motion, Murillo has submitted a certified copy of her trust account statement and a prison certificate pursuant to 28 U.S.C. § 1915(a)(2) and S.D. Cal. Civ. L.R. 3.2. (See Docs. 2-3); Andrews, 398 F.3d at 1119. These documents show that Murillo had an average monthly balance of $812.22 and average monthly deposits of $329.99 in the six months preceding the filing of her Complaint. (Doc. 3.) She had an available balance of $127.28 at the time of filing. Id. Therefore, the Court GRANTS the Motion to Proceed IFP (Doc. 2) and assesses an initial partial filing fee of $162.44 pursuant to 28 U.S.C. § 1915(b)(1). However, this initial fee need be collected only if sufficient funds are available in Murillo's account at the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from bringing a civil action or appealing a civil action or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner's IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when payment is ordered.”). The CDCR must thereafter collect the full balance of the $350 total fee owed in this case and forward payments to the Clerk of the Court as provided by 28 U.S.C. § 1915(b)(2).
II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(E)(2) AND 1915A(B)
A. Legal Standard
Because Murillo is a prisoner, her Complaint requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).
“The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
“Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
B. Factual Allegations of the Complaint
In Claim One, Murillo alleges that on July 31, 2019, while incarcerated at Salinas Valley State Prison (“SVSP”), she fell while working in the prison kitchen. (Doc. 1-2 at 4.) She suffered a knee injury, facial numbness, and an injured back. (Id. at 4.) A doctor at SVSP referred her for an MRI, which she refused because she is claustrophobic. (Id. at 4-5.) In January of 2022, Dr. Chau at RJD ordered a standing MRI for Murillo. (Id. at 5.) Murillo did not receive the MRI, however, because she was housed at California Institute for Men (“CIM”) at the time under suicide watch. (Id.) The MRI was never rescheduled. (Id.) Murillo claims she has received five physical therapy sessions but no other medical treatment for her injuries and no pain medication. (Id. at 6.) This has resulted in Murillo being unable to walk without severe pain; she has now been provided with a wheelchair. (Id.) Murillo's facial paralysis has also gotten worse, and she has headaches as a result of her injuries. (Id. at 7.)
In Claim Two, Murillo claims defendants have violated the Americans With Disabilities Act (“ADA”) by allowing the California Prison Industry Authority (“CAL-PIA”) to discriminate against disabled inmates by refusing to allow inmates who use walkers, are in a wheelchair, or who are transgender to work. (Id. at 8-9.) Murillo claims that when she filed grievances against ADA staff regarding this discrimination, she was denied access to a talking book and a talking pillow in retaliation. (Id. at 10.) She also alleges she has been denied access to notepads for communication purposes and hearing aids. (Id.) When she complained about this, Defendant Lopez allegedly refused to use notes to communicate with her, used intimidation and retaliation, and attempted to use force on her because she complained he was not following ADA procedures. (Id.)
In Claim Three, Murillo alleges the Defendants have denied her gender affirming treatment and care. (Id. at 11.) She alleges she has requested sexual reassignment surgery, but it has been denied. (Id. at 11-12.) She claims she has attempted suicide several times because “she can't handle being the wrong body and feeling like something invaded her body.” (Id. at 14.)
C. Discussion
1. Eighth Amendment (Claims One and Three)
In Claim One, Murillo seeks to sue RJD Warden M. Mcray, Warden Raymond Madden, Chief Doctor Blaisdell, and Health Care Compliance Analyst B. Campbell for violating her Eighth Amendment rights by failing to provide her with proper medical care for her back injury and by failing to provide her with gender affirming care and surgery. (Doc. 1-2 at 2-3, 11-19.) The Eighth Amendment requires that inmates have “ready access to adequate medical care,” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), and “deliberate indifference to serious medical needs of prisoners” violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A prison official acts with ‘deliberate indifference . . . only if the [prison official] knows of and disregards an excessive risk to inmate health and safety.'” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), overruled on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016)). “Under this standard, the prison official must not only ‘be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person ‘must also draw the inference.'” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Murillo has not stated a plausible Eighth Amendment claim against Mcray, Madden, or Blaisdell, for two reasons. First, she has set forth no facts which plausibly allege these Defendants were “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,” and that they also drew that inference. Id. Murillo makes no specific factual allegations at all with regard to these Defendants. (See Doc. 1-2 at 4-19.) Second, Murillo has not made any factual allegations as to what these Defendants personally did or did not do to violate her constitutional rights. “Causation is, of course, a required element of a § 1983 claim.” Estate of Brooks ex rel. Brooks v. United States, 197 F.3d 1245, 1248 (9th Cir. 1999), as amended (Dec. 9, 1999) (citing Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)). Thus, a plaintiff must, at minimum, allege some factual content to describe how each individual person she seeks to sue violated the Constitution, and “set forth specific facts” as to each individual defendant's wrongdoing. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988); Iqbal, 556 U.S. at 676-77; Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009). Here, Murillo simply states that “Defendants” violated her Eighth Amendment rights by failing to provide her proper medical care for her back and refusing to provide gender affirming care and surgery. (See Doc. 1-2 at 5-6.) Such conclusory allegations are not sufficient to state a § 1983 claim for deliberate indifference. Iqbal, 556 U.S. at 678.
As to Defendant Campbell, Murillo alleges he failed to reschedule her MRI or “assure compliance” with the prison doctor's order for the MRI. (Doc. 1-2 at 5.) Deliberate indifference requires “a purposeful act or failure to respond to a prisoner's pain or possible medical need.” Jett v. Palmer, 439 F.3d 1091, 1096 (9th Cir. 2006). Murillo's allegations against Campbell are insufficient to state an Eighth Amendment claim because she does not state any facts showing Campbell was “aware of facts from which the inference could be drawn that a substantial risk of serious harm [to her] exist[ed],” or that Campbell actually drew that inference. Toguchi, 391 F.3d at 1057. Further, to state a plausible § 1983 claim, the factual allegations contained in the Complaint “must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362, 370-71 (1976)). The pleadings must show each defendant “[performed] an affirmative act, participate[d] in another's affirmative acts, or omit[ted] to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Here, Murillo has failed to allege facts showing Campbell was responsible for either rescheduling her MRI or ensuring the MRI occurred and purposely failed to do so. (See Doc. 1-2 at 5.) Accordingly, she has failed to state a plausible § 1983 as to Campbell as well. Iqbal, 556 U.S. at 678.
Murillo also alleges California Corrections Health Care Services and the CDCR have violated her Eighth Amendment rights by refusing to provide gender affirming care and surgery. (Doc. 1-2 at 11-16.) She alleges she has submitted numerous requests for the care which have been denied and that appeals of those denials have also been denied. (Id.)As a result, she claims she has attempted suicide and is suffering from depression and anxiety because she feels she is in the wrong body. (Id.)
The Court notes that the records submitted by Plaintiff (Doc. 5-1) reflect Plaintiff has filed 602 grievances related to healthcare, and that Plaintiff has appealed many decisions through the Institutional-level and Headquarter-level. (See Doc. 5-1 at 14, 85-87 (headquarters level responses), 32-33, 58-61, 68-70, 91-92 (institutional level responses).) Those records also reflect that some of the care Plaintiff alleges she has been denied was not provided, at least according to the records submitted, because Plaintiff refused required appointments and labs. (Id. at 15, 32, 59, 69, 86, 92-93.).
The California Correctional Health Care Services and the CDCR are not “persons” subject to suit under § 1983. Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001) (“[T]he State is not a ‘person' for purposes of § 1983.”); Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (holding that a state department of corrections is an arm of the state, and thus, not a “person” within the meaning of § 1983); see also Dragasits v. California, No. 3:16-cv-01998-BEN-JLB, 2016 WL 6804947, at *3 (S.D. Cal. Nov. 15, 2016) (“The State of California's Department of Corrections and Rehabilitation and any state prison, correctional agency, sub-division, or department under its jurisdiction, are not ‘persons' subject to suit under § 1983). Additionally, as agencies of the State of California they are immune from suit under the Eleventh Amendment absent waiver. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (holding that Eleventh Amendment immunity extends to state agencies); see also Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999) (“In the absence of a waiver by the state or a valid congressional override, under the Eleventh Amendment agencies of the state are immune from private damage actions or suits for injunctive relief brought in federal court.”); Aholelei v. Dep't of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). “The State of California has not waived its Eleventh Amendment immunity with respect to claims brought under § 1983 in federal court.” Dittman, 191 F.3d at 1025-26 (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)); see also Brown v. Cal. Dep't of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (finding California Department of Corrections and California Board of Prison Terms entitled to Eleventh Amendment immunity). Accordingly, Murillo's Eighth Amendment claims against the California Correctional Health Care Services and the CDCR must be dismissed because they are not proper defendants for this claim. See 28 U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)(2).
2. ADA and Rehabilitation Act Violations (Claim Two)
Murillo alleges she is a member of the classes in the Armstong and Coleman cases. Armstrong is a civil action pending in the United States District Court for the Northern District of California which involves a “certified class of all present and future California state prison inmates and parolees with disabilities [who] sued California state officials in their official capacities, seeking injunctive relief for violations of the [Rehabilitation Act] and the ADA in state prisons.” Armstrong v. Wilson, 124 F.3d 1019, 1021 (9th Cir. 1997). “The Coleman/Plata actions are consolidated civil rights class actions pending in the United States District Court for the Eastern and Northern Districts of California.” Edelbacher v. Cal. Bd. of Parole Hearings, No. 17-CV-04783-HSG (PR), 2017 WL 4340348, at *1 (N.D. Cal. Sept. 29, 2017). “The Coleman class action concerns the constitutional adequacy of the mental health care provided to CDCR inmates and involves the class of seriously mentally ill persons in California prisons. The Plata class action concerns the constitutional adequacy of CDCR's inmate medical health care and involves the class of state prisoners with serious medical conditions.” Id.; see also Patton v. Flores, No. 3:19-CV-00659-WQH-LL, 2020 WL 4697978, at *2 n.3 (S.D. Cal. Aug. 13, 2020).
Murillo claims Defendants have violated her rights under Title II of the ADA and § 504 of the Rehabilitation Act (“§ 504”) by refusing to provide accommodations for her disabilities. (Doc. 1-2 at 8-11.) Specifically, she complains she is not being allowed access to a talking book, talking pillow, or prison employment with laundry services because of her disabilities. (Id.) She asks for both injunctive relief and money damages. (Id. at 24.) Claim Two only includes specific allegations as to Defendants CDCR, CALPIA, and Defendant Lopez, although there are references to “Defendants” in general.
To state a claim under Title II of the ADA a plaintiff must allege:
(1) [s]he “is an individual with a disability;” (2) [s]he “is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities;” (3) [s]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 [her] disability.”O'Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007) (citing McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004)). “The elements of a claim under § 504 of the Rehabilitation Act are the same, with the additional requirement that the program at issue receive federal funds.” Cox v. Narkiewicz, No. C19-1486-JCC-MLP, 2019 WL 11753650, at *6 (W.D. Wash. Oct. 31, 2019) (citing Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001)).
“To recover money damages under Title II or the Rehabilitation Act, ‘a plaintiff must prove intentional discrimination on the part of the defendant' under the deliberate indifference standard.” Id. (quoting Duvall, 260 F.3d at 1138); see also Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008)). To obtain injunctive relief, a plaintiff must allege only that she was denied meaningful access to a public entity's programs, services, or activities.” Martinez v. Cnty. of Alameda, 512 F.Supp.3d 978, 986 (N.D. Cal. Jan. 12, 2021) (citing Cal. Council of the Blind v. Cnty. of Alameda, 985 F.Supp.2d 1229, 1236 (N.D. Cal. Oct. 24, 2013)).
Murillo may not pursue ADA claims against the individual Defendants in their individual capacities. See Walsh v. Nev. Dep't of Human Res., 471 F.3d 1033, 1038 (9th Cir. 2006) (holding that the “bar on suits against individual defendants” applies to the ADA); see also Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (Title II of “ADA applies only to public entities”). Thus, Murillo may not pursue ADA claims against any of the individual defendants in their individual capacities. Official capacity claims against individual defendants might be permissible. See Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003) (“Title II's statutory language does not prohibit [the plaintiff's] injunctive action against state officials in their official capacities.”). However, here, except as discussed below as to Defendant Lopez, the Complaint lacks any allegations explaining what any other individual Defendant did or did not do in any capacity to violate the ADA or . See Espino v. Regents of the Univ. of Cal., 666 F.Supp.3d 1065, 2023 WL 3549464, at *11 (C.D. Cal. March 31, 2023) (explaining that “some ‘fairly direct' connection to the enforcement of Title II” must be alleged to state a cognizable Title II claim against an individual) For example, while Defendant Reyes is identified early in the Complaint as being an ADA Coordinator (Doc. 1-2 at 3), there are no allegations what, if anything Defendant Reyes did or did not do to violate Murillo's right under the ADA or § 504. Accordingly, Murrillo has failed to state an ADA or § 504 claim with respect to the individual Defendants. Iqbal, 556 U.S. at 678.
However, Murillo may sue the CDCR and CALPIA under Title II. “[A] public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, discriminate against individuals with disabilities.” Armstrong v. Schwarzenegger, 622 F.3d 1058, 1065 (9th Cir. 2010) (quoting 28 C.F.R. § 35.130(b)(1)); Penn. Dep't of Corr. v. Yeskey, 524 U.S. 206, 213 (1998) (“[T]he plain text of Title II of the ADA unambiguously extends to state prison inmates.”); see also Adams v. Cal. Prison Indus. Auth., No. 2:20-cv-1901-JDP (PC), 2021 WL 4441546, at *1 (E.D. Cal. Sept. 28, 2021) (permitting an ADA claim against CALPIA to proceed). Given Murillo's allegations, the Court concludes she has stated plausible claims under the ADA and § 504 against Defendants CDCR and CALPIA sufficient to pass the screening stage. Iqbal, 556 U.S. at 678.
3. Retaliation (Claim Two)
Murillo also alleges Defendants retaliated against her for filing complaints about her health care and about ADA staff. “Prisoners have a First Amendment right to file grievances against prison officials and to be free from retaliation for doing so.” Watison, 668 F.3d at 1114 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of [her] First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Murillo alleges she filed 602s regarding the denial of treatment for her back injury which “only lead to retaliation.” (Doc. 1-2 at 6.) These allegations are insufficient to state a retaliation claim because they do not identify who took the adverse action, what the adverse action was, how the adverse action chilled her First Amendment rights, and why the action did not reasonably advance a legitimate correctional goal. Rhodes, 408 F.3d at 567-88. Conclusory assertions that “defendants” took some action or failed to do so are not sufficient to state a § 1983 claim for retaliation. Iqbal, 556 U.S. at 678.
Murillo claims she was approved to receive a “talking book,” but that once she filed 602 grievances against ADA staff, “she was retaliated by getting her talking book denied without reason.” (Doc. 1-2 at 10.) As the Court has noted, in order to state a plausible § 1983 claim, “[a] plaintiff must allege facts, not simply conclusions, that show that [each defendant] was personally involved in the deprivation of [her] civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011). An official can only be liable in a § 1983 action “for his or her own misconduct.” Iqbal, 556 U.S. at 677. Conclusory assertions that “defendants” took some action or failed to do so are not sufficient to state a § 1983 claim for retaliation. Id. at 678. Thus, because Murillo has not plausibly alleged any Defendant, through his or her own conduct, retaliated against her by taking her talking book away for filing a complaint, she has failed to state a § 1983 claim with respect to the refusal to provide her with a talking book.
However, Murillo also alleges that Defendant Lopez refused to follow ADA procedures and use notes to communicate with her, which is necessary because she does not have hearing aids. (Doc. 1-2 at 10.) When she complained that Lopez was not following proper procedures by doing so, Plaintiff alleges he retaliated against her by creating “bogus RVR/Chronos [and] write ups,” and attempting and threatening to use force on her. (Id. at 10-11.) Because Murillo has alleged Lopez took an adverse action against her (created bogus RVRs and attempted to use force on her) because of her protected conduct (she complained about his refusal to follow ADA protocols), and Lopez's actions chilled her First Amendment rights and appear to have had no legitimate correctional goal, she has stated a plausible retaliation claim against Defendant Lopez under § 1983. See Rhodes, 408 F.3d at 567-68; Iqbal, 556 U.S. at 678.
III. REQUESTS FOR EXPEDITED SCREENING AND TEMPORARY RESTRAINING ORDER
Murillo asks this Court to issue a Temporary Restraining Order (“TRO”) directing the CDCR to perform an MRI on her back and provide other medical care related to her back injury, remedy the ADA violations she complains of, and provide gender affirming care and surgery. (Doc. 1-2 at 19-24.) She has also filed a document entitled “Emergency Motion for Case Screening Priority and Expedited Screening Ruling as the Case Deals With Medical Care and TRO Request” (Doc. 4) and separately filed more than 100 pages of records (Doc. 5).
“The standards for issuing a TRO and a preliminary injunction are ‘substantially identical.'” Spell v. Cnty. of Los Angeles, No. 2:19-06652 FMO (ADS), 2019 WL 9048854, at *2 (C.D. Cal. Sept. 10, 2019) (quoting Stuhlbarg Int'l Sales Co. v. John D. Brushy & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (overruled on other grounds)). “‘A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.'” Glossip v. Gross, 576 U.S. 863, 876 (2015) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “The first factor under Winter is the most important-likely success on the merits.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). “A preliminary injunction is an extraordinary remedy and never awarded as of right.” Winter, 555 U.S. at 23. Additionally, when a TRO is sought without notice to the opposing party, as Murillo does here, Rule 65(b)(1)(A) requires that “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.”
Here, the Court has determined that the Complaint does not state an Eighth Amendment claim with respect to her medical treatment and gender affirming care and that she has failed to state ADA or § 504 claims against any of the individual Defendants. Accordingly, at this point she has not demonstrated she is likely to succeed on the merits on those claims and with respect to her ADA and § 504 claims, they do not show an “immediate and irreparable injury, loss, or damage will result . . . before the adverse party can be heard in opposition.” Rule 65(b)(1)(A). Accordingly, Murillo's request for a TRO is DENIED.
Further, because the Court has now screened her Complaint, the Court DENIES Murillo's requests for expedited screening (Docs. 4, 6) as moot.
IV. LODGMENTS
After filing her Complaint and the TRO request, Murillo submitted 121 pages of exhibits. (Doc. 5-1.) There are 27 exhibits total. (Doc. 5 at 2-3.) They consist primarily of grievances filed with various prisons and the responses Murillo received to those grievances either from the facility or the state headquarters. (Doc. 5.) Murillo requests that the Court take judicial notice of the documents. (Doc. 5 at 1-3.) She also argues the Complaint necessarily relies on them. (Id. at 3.)
Murillo appears to be relying on the incorporation by reference doctrine. It allows courts may “take into account documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading.” Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1160 (9th Cir. 2012) (internal quotations and citations omitted). “[I]ncorporation-by-reference is a judicially created doctrine that treats certain documents as though they are part of the complaint itself,” Khoja, 899 F.3d at 1002, so long as “the plaintiff refers extensively to the document, or the document forms the basis of the plaintiff's claim.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). It is typically relied on by defendants “to pile on numerous documents to their motions to dismiss to undermine the complaint, and hopefully dismiss the case at an early stage.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018).
While each exhibit has a title, there is no explanation how the Complaint necessarily relies on them or for what purpose the Court would take judicial notice of them. Given they are primarily grievances Murillo has filed and the responses she received to them, she may intend they be considered for purposes of establishing exhaustion of administrative remedies. However, there are grievances from facilities other than RJD going back as far as 2015 which suggests there may be a different purpose. (Doc. 5-1 at 35-37.) It is also possible, given the reference to the Complaint necessarily relying on them, that Plaintiff is attempting to supplement or amend her Complaint via judicial notice. Given the lack of explanation and the possibility that Murillo may elect to amend the Complaint, the Court DENIES the request for judicial notice at this time.
V. CONCLUSION AND ORDER
Based on the foregoing, the Court:
1) GRANTS Plaintiff's Motion to Proceed In Forma Pauperis (Doc. 3);
2) ORDERS the Secretary of the CDCR, or his designee, to collect from Plaintiff's prison trust account the $350 filing fee owed in this case by collecting monthly payments from the account in an amount equal to twenty percent (20%) of the preceding month's income and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO HIS ACTION;
3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883, Sacramento, California, 94283-0001, or in the alternative by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov;
4) DISMISSES Plaintiff's Eighth Amendment claims sua sponte for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1);
(5) DISMISSES Plaintiff's ADA and § 504 claims against Defendant Reyes for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1);
5) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which to either: (1) file a Notice of Intent to Proceed with her First Amendment retaliation claim against Defendant Lopez and her ADA and § 504 claims against Defendants CDCR and CALPIA only; OR (2) file an Amended Complaint correcting the deficiencies of pleading identified by the Court in this Order.
If Plaintiff chooses to proceed with her First Amendment retaliation claim against Defendant Lopez and her ADA and § 504 claims against Defendants CDCR and CALPIA only, the Court will issue an Order directing the U.S. Marshal to effect service of her Complaint on Defendants Lopez, CDCR, and CALPIA and dismiss the remaining Defendants and claims.
If Plaintiff chooses to file an amended pleading correcting the deficiencies outlined in this Order, her Amended Complaint must be complete in itself without reference to her original pleading. Defendants not named and any claims not re-alleged in the Amended Complaint will be considered waived. See S.D. Cal. Civ.LR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not re-alleged in an amended pleading may be “considered waived if not repled.”). Plaintiff's Amended Complaint must be entitled as her “First Amended Complaint,” contain S.D. Cal. Civil Case No. 23-cv-0581-RBM-MSB in its caption and comply both with Federal Rule of Civil Procedure 8 and Civil Local Rule 8.2.a.
In order to assist Plaintiff in complying with these requirements, the Court further DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its form Complaint under the Civil Rights Act, 42 U.S.C. § 1983 for her use and convenience should she choose to amend.
IT IS SO ORDERED.