Anthony Jordan Tennessee, Jr. v. F. Camacho; P. Plascencia; Multiple John Does; Multiple Jane Does

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA — 9 — 10 ANTHONY JORDAN TENNESSEE, Jr., Case No.: 25-cv-2027-DMS-KSC CDCR #BC-4511, — 11 — ORDER GRANTING MOTION Plaintiff, 12 TO PROCEED IN FORMA vs. PAUPERIS AND SCREENING — 13 — COMPLAINT PURSUANT F. CAMACHO, Correctional Officer; 14 TO 28 U.S.C. §§ 1915 (e)(2) P. PLASCENCIA, Correctional Sergeant; AND 1915A(a) 15 MULTIPLE JOHN DOES; MULTIPLE JANE DOES, 16 [ECF No. 2] Defendants. — 17 — — 18 — 19 Plaintiff Anthony Jordan Tennessee, Jr., proceeding pro se and currently 20 incarcerated at California State Prison, Sacramento (“CSP-SAC”) in Represa, California, 21 has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 , together with a Motion to 22 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915 (a). (See ECF Nos. 1, 2.) 23 Plaintiff claims two named and various unnamed correctional officials at Richard J. 24 Donovan Correctional Facility in San Diego (“RJD”) violated his Eighth and Fourteenth 25 Amendment rights on and after an October 27, 2023 altercation on RJD’s A Yard.1 (See — 26 — — 27 — 1 The Court takes judicial notice that Plaintiff filed a separate civil rights action in this Court on the same — 28 — 1 ECF No. 1 at 3, 8.) He seeks $500,000 in general and punitive damages and demands a 2 jury trial. (Id. at 7.) 3 For the reasons explained, the Court GRANTS Plaintiff’s Motion to Proceed IFP 4 and SCREENS his Complaint pursuant to 28 U.S.C. §§ 1915 (e)(2) and 1915A(b). The 5 Court finds that while Plaintiff adequately alleges an Eighth Amendment excessive claim 6 against Defendant Plasencia, he fails to state any plausible claim for relief against any other 7 named or unnamed Defendant. Therefore, the Court ORDERS Plaintiff to either file an 8 Amended Complaint that addresses the pleading deficiencies explained below, or to file a 9 Notice of Intent to Proceed with the excessive force claims alleged in his current Complaint 10 against Defendant Plascencia only. 11 I. MOTION TO PROCEED IFP 12 All parties instituting any civil action, suit or proceeding in a district court of the 13 United States, except an application for writ of habeas corpus, must pay a filing fee of 14 $405.2 See 28 U.S.C. § 1914 (a). The action may proceed despite a failure to pay the entire 15 fee at the time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant 16 to 28 U.S.C. § 1915 (a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 17 cf. Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] 18 IFP application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the 19 fee[s] [a]re paid.”). 20 / / / — 21 — — 22 — 4, 2025) (“Enriquez”). See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may 23 take judicial notice of its own records in other cases.”). In Enriquez, however, Plaintiff seeks to sue different RJD correctional officials who are alleged to have used excessive force and refused him medical — 24 — attention during a cell extraction on November 22, 2023—nearly a month after the excessive force incident 25 at issue in this case. See Enriquez, ECF No. 1 at 1‒6. Nowhere in either pleading does Plaintiff claim the two incidents are related. — 26 — 2 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 $55 administrative portion of the fee does not apply to persons granted leave to proceed — 28 — 1 “While the previous version of the IFP statute granted courts the authority to waive 2 fees for any person ‘unable to pay[,]’ … the PLRA [Prison Litigation Reform Act] 3 amended the IFP statute to include a carve-out for prisoners: under the current version of 4 the IFP statute, ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the 5 prisoner shall be required to pay the full amount of a filing fee.’” Hymas, 73 F.4th at 767 6 (quoting 28 U.S.C. § 1915 (b)(1)). Section 1915(b) “provides a structured timeline for 7 collecting this fee.” Id. (citing 28 U.S.C. § 1915 (b)(1)-(2)). 8 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of 9 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account 10 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 11 the filing of the complaint.” 28 U.S.C. § 1915 (a)(1), (2); Andrews v. King, 398 F.3d 1113 , 12 1119 (9th Cir. 2005). Using this financial information, the court “shall assess and when 13 funds exist, collect, … an initial partial filing fee,” which is “calculated based on ‘the 14 average monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the 15 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly 16 payments of 20 percent of the preceding month’s income credited to the prisoner’s 17 account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915 (b)(1)–(2)). Thus, while 18 prisoners may qualify to proceed IFP without having to pay the statutory filing fee in one 19 lump sum, they nevertheless remain obligated to pay the full amount due in monthly 20 payments. See Bruce v. Samuels, 577 U.S. 82 , 84 (2016); 28 U.S.C. § 1915 (b)(1) & (2); 21 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 22 Here, Plaintiff’s Motion to Proceed IFP complies with both 28 U.S.C. § 1915 (a)(1) 23 and (2). In support, Plaintiff has submitted a prison certificate authorized by a CSP-SAC 24 accounting officer and certified copies of his California Department of Corrections and 25 Rehabilitation (“CDCR”) Inmate Trust Account Statement Report (ECF No. 2 at 5‒7). See 26 S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These documents show Plaintiff 27 maintained an average monthly balance of $9.75 in his prison trust account, and had $5.00 28 in average monthly deposits credited to his account over the 6-month period immediately 1 preceding the filing of his Complaint. At the time of filing, however, Plaintiff’s available 2 balance was only $.18. (ECF No. 2 at 5, 7.) 3 Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2) 4 and assesses an initial partial filing fee of $1.95 pursuant to 28 U.S.C. § 1915 (b)(1). This 5 initial fee need be collected, however, only if sufficient funds are available in Plaintiff’s 6 account at the time this Order is executed. See 28 U.S.C. § 1915 (b)(4) (providing that “[i]n 7 no event shall a prisoner be prohibited from bringing a civil action or appealing a civil 8 action or criminal judgment for the reason that the prisoner has no assets and no means by 9 which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. 10 § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based 11 solely on a “failure to pay . . . due to the lack of funds available to him when payment is 12 ordered.”). The CDCR must thereafter collect the full balance of the $350 total fee owed 13 in this case and forward payments to the Clerk of the Court as provided by 28 14 U.S.C. § 1915 (b)(2). 15 II. SCREENING PURSUANT TO 28 U.S.C. § 1915 (e)(2) & 1915A(a) 16 A. Standard of Review 17 Because Plaintiff is a prisoner and proceeding IFP, his Complaint requires an initial 18 screening pursuant to 28 U.S.C. §§ 1915 (e)(2) and 1915A(a). Under these statutes, the 19 Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is 20 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 21 immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017) (discussing 28 U.S.C. 22 § 1915(e)(2)) (citing Lopez v. Smith, 203 F.3d 1122 , 1126‒27 (9th Cir. 2000) (en banc)); 23 Rhodes v. Robinson, 621 F.3d 1002 , 1004 (9th Cir. 2010) (discussing 28 U.S.C. 24 § 1915A(b)). 25 “The standard for determining whether a plaintiff has failed to state a claim upon 26 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 27 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 28 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 1 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 2 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 3 12(b)(6)”). Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to 4 “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible 5 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks 6 omitted); Wilhelm, 680 F.3d at 1121 . Detailed factual allegations are not required, but 7 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 8 statements, do not suffice.” Iqbal, 556 U.S. at 678 . 9 When conducting its initial screening, the Court must be mindful of its “obligation 10 where the petitioner is pro se, particularly in a civil rights case, to construe the pleadings 11 liberally and to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 12 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026 , 1027 n.1 (9th Cir. 13 1985)). It may not, however, “supply essential elements of claims that were not initially 14 pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 15 B. Factual Allegations 16 Plaintiff, who identifies as an enhanced outpatient prisoner (“EOP”) at RJD,3 alleges 17 that on October 27, 2023, he “needed some air” and felt like the “walls were closing in on 18 [him],” so he exited his housing unit during a medication call. (ECF No. 1 at 3.) Officer 19 Burns confronted him, asked him to go back inside, and activated her alarm as other 20 officers arrived. (Id.) Defendant Camacho told Plaintiff to “take a seat by the building or 21 stand if [he] needed some air,” and Plaintiff complied. “[D]ue to [his] mental health crisis,” 22 however, Plaintiff alleges he was “unable to stay in the same position” and “got up.” (Id.) 23 In response, another alarm was activated, and “more than 20 officers with body cameras” 24 approached. (Id.) — 25 — — 26 — 27 3 “The Enhanced Outpatient Program (EOP) is for inmates with ‘acute onset or significant decompensation of a serious mental disorder.’ […] EOP programs are located in designated living units — 28 — 1 Plaintiff alleges Officer Enriquez was “leading the pack,” but “calmly direct[ed] the 2 situation,” saw that Plaintiff “was not a threat,” and “prevented the other officers from 3 implementing their own agendas.” (Id.) Plaintiff asked the officers “not to circle around 4 because of [his] PTSD and anxiety,” but the group of officers surrounded him and ordered 5 him to “cuff up.” (Id.)4 6 Plaintiff next alleges he saw Sgt. Plasencia “storming from the side,” saying “I or 7 we are tired of your shit.” (Id.) As Plasencia “unholstered her monadnock expandable 8 baton,” Plaintiff claims he “immediately” stopped, placed both of his opened hands straight 9 in the air, declared himself “non-violent,” and waited for the next “lawful order.” (Id.) 10 Nevertheless, Plascencia “swung her baton at [Plaintiff’s] knees,” Plaintiff fell to the 11 ground, and was “hit in the head with a baton from behind.” (Id.) “Dizzy and daz[]ed,” 12 Plaintiff placed both hands on his head and discovered he was “profusely bleeding from 13 [his] forehead.” (Id.) Plaintiff next claims to have “lay down on [his] stomach on the 14 ground” and lost consciousness, only to be awakened by “numerous officers punching and 15 kicking [him] while they jerk[ed] [his] arms behind [his] back.” (Id. at 8.) Plaintiff avers 16 “at no time was [he] resisting or moving” during the incident, and was sent to an outside 17 hospital where he “received numerous staples in [his] forehead.” (Id.) 18 Upon his return to RJD, Plaintiff further claims to have been “retaliated against with 19 a false RVR [Rules Violation Report] for staff assault.” (Id.) As a result, he “was placed 20 in the lockup RHU [Restricted Housing Unit] for more than a year.” (Id.) He now seeks 21 $500,000 in general and punitive damages against Officer Camacho, Sgt. Plascencia, and 22 “multiple” John and Jane Doe Correctional Officers, alleging they used excessive force, 23 failed to protect, and deprived him of liberty without due process by filing fabricated and 24 retaliatory disciplinary charges against him. (Id. at 3, 7.) 25 / / / — 26 — — 27 — — 28 — 1 C. Discussion 2 The Court has conducted its initial screening of Plaintiff’s Complaint and finds it 3 contains Eighth Amendment excessive allegations involving Defendant Plascencia 4 sufficient to survive the “low threshold” set for sua sponte screening. See Watison, 668 5 F.3d at 1112; Wilhelm, 680 F.3d at 1121, 1123 . Plaintiff’s remaining claims involving 6 Defendant Camacho and all unidentified Does however, fail to state any plausible claim 7 for relief and are subject to dismissal pursuant to 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 8 1915A(b)(1) for the reasons explained below. 9 1. Excessive Force – Defendants Plascencia & Camacho 10 Unnecessary and wanton infliction of pain violates the Cruel and Unusual 11 Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1 , 5 12 (1992). For claims arising out of the use of excessive physical force, the Court considers 13 “whether force was applied in a good-faith effort to maintain or restore discipline, or 14 maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per 15 curiam) (citing Hudson, 503 U.S. at 7 ) (internal quotation marks omitted). 16 Plaintiff alleges Sgt. Plasencia hit him with a baton with enough force to cause him 17 to fall to his knees despite the fact that he held his hands straight in the air, declared himself 18 “non-violent,” and was simply waiting for a “lawful order.” (ECF No. 1 at 3.) Plaintiff 19 further alleges to have been hit with a baton in the head from behind after he had already 20 fallen to the ground. (Id.) While he does not specify who who landed the head blow, the 21 facts contained in his Complaint, including Plaintiff’s allegation that it was Plascencia who 22 “storm[ed] from the side,” held a baton, and exclaimed she was “sick of [Plaintiff’s] shit,” 23 when liberally construed in Plaintiff’s favor, plausibly support an excessive force claim 24 against her. See ECF No. 1 at 3; Iqbal, 556 U.S. at 678 ; Hudson, 507 U.S. at 7. See also 25 Hughes v. Rodriguez, 31 F.4th 1211, 1222 (9th Cir. 2022) (affirming denial of summary 26 judgment for officers alleged to have beaten and permitted a canine to bite prisoner “after 27 he was fully subdued.”); Duclos v. Smith, No. 1:24-CV-00515-HBK (PC), 2024 WL 28 5508219, at *3 (E.D. Cal. June 24, 2024) (finding prisoner who struck so forcefully in the 1 face that he “dropped to the ground immediately,” but alleged not to have posed any 2 credible threat to a group of five officers simply by “raising [his] hands” and asking what 3 they were doing adequately alleged an Eighth Amendment excessive use of force claim); 4 Quinones v. Parr, No. 3:20-CV-00390 MMD CLB, 2021 WL 8321869 , at *3 (D. Nev. Oct. 5 28, 2021) (finding prisoner’s allegations of having been tased and beaten by officers “after 6 they found him sitting against a wall with his legs crossed, hands in the air, and compliant” 7 sufficient to survive screening pursuant to 28 U.S.C. § 1915A). 8 Plaintiff fails to state a plausible Eighth Amendment claim against Officer Camacho 9 however. In fact, Plaintiff alleges only that Camacho directed him to sit or stand near the 10 building if he needed some air. (ECF No. 1 at 3.) Plaintiff attributes no further action or 11 use of force to Camacho, and he fails to even minimally explain what role, if any, Camacho 12 played in any events that followed. “A plaintiff must allege facts, not simply conclusions, 13 that show that an individual was personally involved in the deprivation of his civil rights.” 14 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). A person deprives another of 15 a constitutional right under section 1983, where that person “‘does an affirmative act, 16 participates in another’s affirmative acts, or omits to perform an act which [that person] is 17 legally required to do that causes the deprivation of which complaint is made.’” Johnson 18 v. Duffy, 588 F.2d 740 , 743 (9th Cir. 1978). Thus, as pleaded, while Plaintiff’s excessive 19 allegations against Sgt. Plascencia are sufficient to survive initial screening, his allegations 20 against Officer Camacho fail to state a claim for relief and are dismissed sua sponte 21 pursuant to 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). 22 2. John and Jane Doe Defendants 23 The Federal Rules of Civil Procedure do not authorize or prohibit the use of fictitious 24 parties, but Rule 10 does require a plaintiff to include the names of all parties in his 25 complaint. See Fed. R. Civ. P. 10(a).5 Therefore, in a section 1983 suit, the “plaintiff may — 26 — — 27 — 5 Doe pleading is especially disfavored in an IFP case because in the event Plaintiff alleges a plausible — 28 — 1 refer to unknown defendants as Defendant John Doe 1, John Doe 2, John Doe 3, and so on, 2 but he must [also] allege specific facts showing how each particular doe defendant violated 3 his rights.” Cuda v. Employees/Contractors/Agents at or OCCC, 2019 WL 2062945 , at 4 *3–4 (D. Haw. May 9, 2019). 5 Here, Plaintiff includes “multiple” unidentified John and Jane Doe Officers as 6 Defendants in the caption of his pleading—but he fails to specify what any of the Does 7 either did or failed to do to cause unconstitutional harm. See Iqbal, 556 U.S. at 676 (“[A] 8 plaintiff must plead that each Government-official defendant, through the official’s own 9 individual actions, has violated the Constitution.”). While Plaintiff refers to “responding 10 officers,” a “pack of officers,” and a “crowd of more than 20 officers with body cameras” 11 who are alleged to have arrived after alarms were activated, see ECF No. 1 at 3, officers 12 may not be held liable based only upon “membership in a group without a showing of 13 individual participation in unlawful conduct.” Jones v. Williams, 297 F.3d 930 , 935 (9th 14 Cir. 2002) (citing Chuman v. Wright, 76 F.3d 292 , 294 (9th Cir. 1996)). Officers may be 15 held liable under the Eighth Amendment for failing to intercede in situations where 16 excessive force is alleged to have been employed by others, but Plaintiff must include facts 17 sufficient to plausibly show that each individual officer he seeks to hold liable under a 18 failure to protect or intercede theory had the opportunity to do so. See Hughes v. Rodriguez, — 19 — 31 F.4th 1211, 1223 (9th Cir. 2022) (citing Cunningham v. Gates, 229 F.3d 1271 , 1289– 20 90 (9th Cir. 2000)). 21 By failing to describe each individual responding officer’s personal participation in 22 the October 27, 2023 incident, Plaintiff also fails to state a claim against any of the 23 unidentified Does. See, e.g., Gen-Probe, Inc. v. Amoco Corp., 926 F. Supp. 948 , 960‒61 — 24 — — 25 — or her duty to serve an unnamed defendant. See Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915 (d); Walker v. 26 Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (in order to properly effect service under Rule 4 in an IFP case, the plaintiff is required to “furnish the information necessary to identify the defendant.”); Finefeuiaki 27 v. Maui Cmty. Corr. Ctr. Staff & Affiliates, 2018 WL 3580764 , at *6 (D. Haw. July 25, 2018) (noting that “[a]s a practical matter, the United States Marshal cannot serve a summons and complaint on an — 28 — 1 (S.D. Cal. 1996) (finding dismissal proper where complaint accused “all defendants of all 2 types of infringement,” but it was “unclear which of the five is accused of which type of 3 infringement” because complaint “lumps together . . . multiple defendants in one broad 4 allegation”); Gauvin v. Trombatore, 682 F. Supp. 1067 , 1070‒71 (N.D. Cal. 1988) 5 (dismissing complaint that “lumped” all defendants “together in a single, broad allegation” 6 without “stating with any specificity how each private defendant allegedly deprived 7 [plaintiff] of a right secured by the Constitution” ). 8 For these reasons, all purported claims for relief against Multiple John and Jane Doe 9 Defendants are dismissed sua sponte for failure to state a claim upon which § 1983 relief 10 can be granted pursuant to 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). 11 3. Due Process & Retaliation 12 Finally, Plaintiff claims he “was retaliated against with a[] false RVR for staff 13 assault,” and was placed in the “lockup RHU” in violation of due process. (See ECF No. 14 1 at 8.) 15 The Due Process Clause of the Fourteenth Amendment protects prisoners from 16 deprivations of life, liberty, or property without due process of law. Wolff v. McDonnell, — 17 — 418 U.S. 539, 556 (1974); Wilkinson v. Austin, 545 U.S. 209, 221 (2005). “To state a 18 procedural due process claim, [a plaintiff] must allege ‘(1) a liberty or property interest 19 protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) 20 lack of process.’” Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (quoting Portman 21 v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)); see also Armstrong v. Reynolds, — 22 — 22 F.4th 1058, 1066 (9th Cir. 2022). Liberty interests protected by the Due Process Clause 23 are “generally limited to freedom from restraint which, while not exceeding the sentence 24 in such an unexpected manner as to give rise to protection by the Due Process Clause of its 25 own force, nonetheless imposes atypical and significant hardship on the inmate in relation 26 to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) 27 (citations omitted); see also Johnson v. Ryan, 55 F.4th 1167 , 1180 (9th Cir. 2022). Where 28 a protected liberty interest arises, due process requires written notice of the charges and 1 evidence relied on and the reasons for the action taken, an opportunity “to call witnesses 2 and present documentary evidence in [ ] defense when” doing so “will not be unduly 3 hazardous to institutional safety or correctional goals,” assistance at the hearing if 4 necessary, and an impartial factfinder. Wolff, 418 U.S. at 564–71. 5 Here, even assuming Plaintiff’s placement “in the lockup RHU for more than a year” 6 by itself is sufficient to invoke a protected liberty interest under Sandin, cf. McNeil v. 7 Molnar, No. 18-CV-01594-RFB-BNW, 2024 WL 1345198 , at *2 (D. Nev. Mar. 28, 2024) 8 (finding 24-months of solitary disciplinary segregation, maximum of two visitors in a six9 month period; and denial of other privileges sufficiently “atypical and significant” to 10 invoke [liberty interest), aff’d, No. 24-2733, 2025 WL 2541910 (9th Cir. Sept. 4, 2025), he 11 fails to further specify which, if any, of Wolff’s procedural protections were violated during 12 the disciplinary proceedings that allegedly resulted in his segregation. See e.g., Johnson, 13 55 F.4th at 1180. He further fails to attribute any particular procedural error to any of the 14 named (or unnamed) Defendants. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) 15 (plaintiffs must “set forth specific facts” as to each individual defendant’s wrongdoing to 16 hold each liable under § 1983). Plaintiff thus fails to plausibly allege a due process 17 violation arising from the “false RVR” charging him with staff assault or the disciplinary 18 proceedings that followed the October 27, 2023 incident. See Iqbal, 556 U.S. at 678 ; see 19 also Goodlow v. Estrada, No. 24-CV-1490-AJB-SBC, 2025 WL 268111 , at *3 (S.D. Cal. 20 Jan. 22, 2025) (dismissing prisoner’s disciplinary due process claims sua sponte pursuant 21 to 28 U.S.C. §§ 1915 (e)(2) and 1915A for failure to identify the denial of any of any of 22 Wolff’s specific “procedural protections.”). 23 Put another way, Plaintiff’s conclusory allegation that disciplinary charges were 24 filed against him based on false assertions that he “attempted to attack and swing [a] 25 clenched fist at Sgt. Plascencia,” see ECF No. 1 at 8, fails to state a claim because “a 26 prisoner does not have a constitutional right to be free from wrongfully issued disciplinary 27 reports.” Buckley v. Gomez, 36 F. Supp. 2d 1216 , 1222 (S.D. Cal. 1997). “The allegation 28 of the filing of false disciplinary charges by itself does not state a claim under 42 U.S.C. 1 § 1983 because federal due process protections are contained in the ensuing disciplinary 2 proceedings themselves.” Gadsden v. Gehris, No. 20cv0470 WQH (DEB), 2020 WL 3 5748094, at *8 (S.D. Cal. Sep. 25, 2020). 4 With respect to Plaintiff’s additional reference to the “retaliatory” nature of the 5 “false RVR,” see ECF No. 1 at 8, this allegation is simply too conclusory to state a 6 retaliation claim. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a 7 cause of action, supported by mere conclusory statements, do not suffice” to state a § 1983 8 claim). The Ninth Circuit has “repeatedly held that mere speculation that defendants acted 9 out of retaliation is not sufficient” to state a retaliation claim. Wood v. Yordy, 753 F.3d 10 899, 905 (9th Cir. 2014). “Within the prison context, a viable claim of First Amendment 11 retaliation entails five basic elements: (1) An assertion that a state actor took some adverse 12 action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such 13 action (4) chilled the inmate’s exercise of [her] First Amendment rights, and (5) the action 14 did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 15 559, 567‒68 (9th Cir. 2005). Plaintiff must allege a retaliatory motive, that is, a causal 16 connection between the adverse action and conduct protected by the First Amendment. 17 Watison, 668 F.3d at 1114 ; see also Bird v. Dzurenda, 131 F.4th 787 , 790–91 (9th Cir. 18 2025). 19 As currently pleaded, Plaintiff’s due process and retaliation allegations meet none 20 of these pleading requirements. Therefore, they are also dismissed sua sponte pursuant to — 21 — 28 U.S.C. §§ 1915 (e)(2) & 1915A(b) for failure to state a claim. Watison, 668 F.3d at 22 1112; Wilhelm, 680 F.3d at 1121 . 23 4. Leave to Amend 24 In sum, while the Court finds Plaintiff’s Complaint sufficiently alleges an Eighth 25 Amendment excessive force claim against Sgt. Plascencia, it fails to allege any other 26 plausible claim for relief. Therefore, it will grant Plaintiff an opportunity to amend. See 27 Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not 28 dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C. 1 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint 2 could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th 3 Cir. 2012)). 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 (ECF No. 2). 8 2. ORDERS the Secretary of the CDCR, or his designee, to collect from 9 Plaintiff’s trust account the $1.95 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 Phillips’ account exceeds 13 $10 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 trusthelpdesk@cdcr.ca.gov. 17 4. DISMISSES all claims against Defendants F. Camacho, Multiple John Does, 18 and Multiple Jane Does based on Plaintiff’s failure to state a plausible claim for relief 19 against any of them pursuant to 28 U.S.C. § 1915 (e)(2)(B) and § 1915A(b)(1). 20 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 21 which to either: (A) file a Notice of Intent to Proceed with his excessive force claims 22 against Sgt. Plascencia only; or (B) file an Amended Complaint that corrects all the 23 deficiencies of pleading identified in this Order. 24 If Plaintiff files a Notice of Intent to proceed against Sgt. Plascencia only, the Court 25 will direct the U.S. Marshal to effect service of process upon Sgt. Plascencia on his behalf 26 pursuant to 28 U.S.C. § 1915 (d) and Fed. R. Civ. P. 4(c)(3). 27 If Plaintiff instead chooses to amend, his new pleading must be clearly titled as his 28 Amended Complaint, contain S.D. Cal. Civil Case No. 25-cv-2027-DMS-KSC in its 1 |}caption, and be complete in itself without reference to his original Complaint. Defendants 2 ||not named and any claim not realleged in Plaintiff's Amended Complaint, including the 3 ||currently sufficient excessive force claim alleged against Sgt. Plascencia, will be 4 ||considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner 5 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 6 original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 7 dismissed with leave to amend which are not re-alleged in an amended pleading may be 8 || ‘““considered waived if not repled.”). 9 IT IS SO ORDERED. 10 || Dated: November 17, 2025 2» 2 von So Hon. Dana M. Sabraw 12 United States District Judge — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — — 14 —