Hawkins v. San Diego County

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA — 10 — 11 CHRISTOPHER HAWKINS and Case No.: 3:20-cv-2200-WQH-KSC DARYL DUNSMORE, — 12 — ORDER Plaintiffs, — 13 — vs. 1) DENYING IN PART MOTION TO — 14 — PROCEED IN FORMA PAUPERIS 15 [ECF No. 2] AND DISMISSING SAN DIEGO COUNTY, SAN DIEGO COMPLAINT AS TO PLAINTIFF — 16 — COUNTY JAIL, OFFICE OF ASSIGNED DUNSMORE PURSUANT TO 28 17 COUNSEL, MICHAEL GARCIA, U.S.C. § 1915(g) WILLIAM TRAINOR, JACKIE — 18 — BRADEN, and DOES 1-10, 2) GRANTING IN PART MOTION 19 Defendants. TO PROCEED IN FORMA PAUPERIS [ECF No. 2] AND — 20 — DISMISSING COMPLAINT AS TO 21 PLAINTIFF HAWKINS FOR FAILURE TO STATE A CLAIM — 22 — PURSUANT TO 28 U.S.C. 23 § 1915(e)(2)(B) AND 28 U.S.C. § 1915A(b) — 24 — 25 3) DENYING MOTION FOR ADA ACCESS [ECF No. 3] — 26 — 27 4) DENYING MOTION FOR CLASS CERTIFICATION [ECF No. 4] — 28 — — 1 — 5) DENYING MOTION — 2 — APPOINTMENT OF COUNSEL 3 [ECF No. 5] — 4 — 6) DENYING MOTION FOR A 5 TEMPORARY RESTRAINING ORDER [ECF No. 6] — 6 — 7 Plaintiffs Christopher Hawkins and Daryl Dunsmore, currently incarcerated at the 8 San Diego County Jail (“SDCJ”), have filed a pro se civil rights action pursuant 42 U.S.C. 9 Section 1983. (See ECF No. 1.) Plaintiffs did not prepay the $400 civil filing fee required 10 by 28 U.S.C. Section 1914 (a) at the time of filing. They have instead filed a Motion to 11 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. Section 1915 (a). (See ECF No. 12 2.) Plaintiffs have also filed a Motion for ADA Access (ECF No. 3), a Motion for Class 13 Certification (ECF No. 4), a Motion for Appointment of Counsel (ECF No. 5), and a 14 Motion for a Temporary Restraining Order (ECF No. 6). 15 I. Motion to Proceed In Forma Pauperis – Plaintiff Daryl Dunsmore 16 A. Standard of Review 17 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 18 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Dunsmore, however, 19 “face an additional hurdle.” Id. 20 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 21 installments” or “increments” as provided by 28 U.S.C. § 1915 (a)(3)(b), the Prison 22 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 23 proceed IFP in cases where the prisoner: 24 . . . has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that — 25 — was dismissed on the grounds that it is frivolous, malicious, or fails to state a 26 claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. — 27 — — 28 — 28 U.S.C. § 1915 (g). 1 “This subdivision is commonly known as the ‘three strikes’ provision.” Andrews v. 2 King, 398 F.3d 1113 , 1116 n.1 (9th Cir. 2005). “Pursuant to § 1915(g), a prisoner with 3 three strikes or more cannot proceed IFP.” Id.; see also Andrews v. Cervantes, 493 F.3d 4 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (stating that under the PLRA, 5 “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from 6 IFP status under the three strikes rule[.]”). The objective of the PLRA is to further “the 7 congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney v. 8 Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 9 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 10 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 11 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 12 styles such dismissal as a denial of the prisoner’s application to file the action without 13 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 14 When courts “review a dismissal to determine whether it counts as a strike, the style of the 15 dismissal or the procedural posture is immaterial. Instead, the central question is whether 16 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El17 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 18 F.3d 607 , 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single 19 action,” however, courts may “assess a PLRA strike only when the case as a whole is 20 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147 , 1152 21 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 22 Cir. 2016)). 23 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 24 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 25 danger of serious physical injury.” See 28 U.S.C. § 1915 (g); Cervantes, 493 F.3d at 1051 - 26 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 27 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 28 / / / 1 B. Discussion 2 The Court has reviewed the Complaint and finds it contains no “plausible 3 allegations” to suggest Dunsmore “faced ‘imminent danger of serious physical injury’ at 4 the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915 (g)). In count 5 one, Dunsmore alleges “[t]he Defendants have established law policy and procedures . . . 6 [which] obstruct[] Plaintiff’s access to the courts . . . [by allowing] them to make judicial 7 decisions although not judicial officers . . . to refuse to file legal documents, block writs, 8 legal mail, legal tools, [etc.].” Compl. at 4. In counts two and three, Dunsmore also alleges 9 that Defendants have “refused to establish and maintain access to services for individuals 10 with disabilities both physical and mental as qualified under the ADA . . . ,” and that 11 “Defendants are depriving Plaintiffs of the right to practice their religion. . . .” Id. at 5-6 . 12 These allegations do not rise to the level of “imminent danger of serious physical injury.” 13 See Cervantes, 493 F.3d at 1055 . 14 While Defendants typically carry the initial burden to produce evidence 15 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119 , “in 16 some instances, the district court docket may be sufficient to show that a prior dismissal 17 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. at 18 1120. That is the case here. 19 Based on a review of its own docket and other court proceedings available on 20 PACER, the Court finds that Daryl Lee Dunsmore, identified as CDCR Inmate #AD-6237, 21 while incarcerated, has had three prior civil actions dismissed on the grounds that they were 22 frivolous, malicious, or failed to state a claim upon which relief may be granted. 23 They are: 24 (1) Dunsmore v. San Diego County Sheriff’s Dep’t, et al., Civil Case 25 No. 3:11-cv-00083-IEG-WVG (S.D. Cal. Nov. 8, 2011) (Order Dismissing 26 Second Amended Complaint for failing to state a claim) (strike one); 27 / / / 28 / / / 1 (2) Dunsmore v. State of California, et al., Civil Case No. 2:11-cv2 07141-DOC-JCG (C.D. Cal. Sept. 4, 2012) (Order Dismissing Second 3 Amended Complaint for failing to state a claim) (strike two); 4 (3) Dunsmore v. State of California, et al., Civil Case No. 3:12-cv5 01936-JAH-DHB (S.D. Cal. March 20, 2013) (Order granting IFP and 6 Dismissing First Amended Complaint for failing to state a claim and as 7 frivolous) (strike three); and 8 (4) Dunsmore v. State of California, et al., Civil Case No. 3:20-cv9 00406-AJB-WVG (S.D. Cal. Aug. 4, 2020) (Order Dismissing First Amended 10 Complaint for failing to state a claim) (strike four). 11 Accordingly, because Dunsmore has, while incarcerated, accumulated at least three 12 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 13 imminent danger of serious physical injury at the time he filed his Complaint, he is not 14 entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055 ; 15 Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915 (g) “does not prevent all 16 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 17 the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin 18 v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (stating that “court permission to proceed 19 IFP is itself a matter of privilege and not right”). The case is thus DISMISSED as to 20 Plaintiff Dunsmore. 21 II. Motion to Proceed in Forma Pauperis – Plaintiff Christopher Hawkins 22 All parties instituting any civil action, suit or proceeding in a district court of the 23 United States, except an application for writ of habeas corpus, must pay a filing fee of 24 $400.1 See 28 U.S.C. § 1914 (a). The action may proceed despite a plaintiff’s failure to — 25 — — 26 — 27 1 For civil cases like this one, filed before December 1, 2020, the civil litigant bringing suit must pay the $350 statutory fee in addition to a $50 administrative fee. See 28 U.S.C. — 28 — 1 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 2 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. 3 Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to 4 proceed IFP remains obligated to pay the entire fee in “increments” or “installments,” 5 Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182 , 1185 6 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. 7 § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 8 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a 9 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the 10 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 11 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified 12 trust account statement, the Court assesses an initial payment of 20% of (a) the average 13 monthly deposits in the account for the past six months, or (b) the average monthly balance 14 in the account for the past six months, whichever is greater, unless the prisoner has no 15 assets. See 28 U.S.C. § 1915 (b)(1); 28 U.S.C. § 1915 (b)(4). The institution having custody 16 of the prisoner then collects subsequent payments, assessed at 20% of the preceding 17 month’s income, in any month in which his account exceeds $10, and forwards those 18 payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915 (b)(2); Bruce, — 19 — 136 S. Ct. at 629 . 20 In support of his IFP Motion, Plaintiff Hawkins has submitted a certified copy of his 21 trust account statement pursuant to 28 U.S.C. Section 1915 (a)(2) and S.D. Cal. Civ. L.R. 22 3.2. Andrews, 398 F.3d at 1119 . The Court has reviewed Hawkins’s trust account activity, 23 as well as the attached prison certificate verifying his available balances. See ECF No. 2, — 24 — — 25 — (eff. June. 1, 2016). The $50 administrative fee does not apply to persons granted leave to — 26 — proceed IFP, however. Id. This administrative fee increased to $52 for civil cases filed on 27 or after December 1, 2020, but that portion still does not apply to persons granted leave to proceed IFP. See 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court — 28 — 1 at 4-6. These documents show that Hawkins carried an average monthly balance of $0.37, 2 average monthly deposits to his trust account for the six months preceding the filing of this 3 action of $0.00, and an available balance of $0.37 at the time of filing. See id. at 4 . 4 Therefore, the Court GRANTS Hawkins’ Motion to Proceed IFP (ECF No. 2) and 5 does not assesses an initial partial filing fee pursuant to 28 U.S.C. Section 1915 (b)(1) 6 because Hawkins does not have sufficient funds. The Court directs the Watch Commander, 7 or their designee, to collect the $350.00 balance of the filing fees required by 28 U.S.C. 8 Section 1914 and to forward it to the Clerk of the Court pursuant to the installment payment 9 provisions set forth in 28 U.S.C. Section 1915 (b)(1). 10 III. Sua Sponte Screening pursuant to 28 U.S.C. Section 1915 (e)(2) and Section 11 1915A(b) 12 A. Standard of Review 13 Because Hawkins is a prisoner and is proceeding IFP, his Complaint requires a pre14 answer screening pursuant to 28 U.S.C. Section 1915 (e)(2) and Section 1915A(b). Under 15 these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion 16 of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants 17 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) 18 (discussing 28 U.S.C. Section 1915 (e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th 19 Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The purpose of [screening] is ‘to 20 ensure that the targets of frivolous or malicious suits need not bear the expense of 21 responding.’” Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 2014) (quoting Wheeler 22 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 23 “The standard for determining whether a plaintiff has failed to state a claim upon 24 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule 25 of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 26 F.3d 1108 , 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 27 Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the familiar 28 standard applied in the context of failure to state a claim under Federal Rule of Civil 1 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, 2 accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, — 3 — 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121 . 4 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 5 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 6 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for relief 7 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 8 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 9 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 10 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 11 B. Hawkins’ Factual Allegations 12 In count one, Hawkins alleges that “Defendants are obstructing Plaintiff’s access to 13 the courts with erroneous policy written or unwritten which allows them to make judicial 14 decisions although not judicial officers.” Compl. at 4. Specifically, Hawkins contends that 15 Defendants “refuse to file legal documents, block writs, legal mail legal tools, legal access 16 to collateral attack, computer instruction or research access, computer assistance or 17 training . . . .” Id. In count two, Hawkins claims Defendants have “failed and refused to 18 establish and maintain access to services for individuals with disabilities both physical and 19 mental as qualified under the ADA [Americans with Disabilities Act].” Id. At 5. He alleges 20 Defendants have done this by “depriving them of all programming, library services, 21 religious services, recreational services, entertainment services, educational service[s], 22 mental health programs, trusty work services and all manner of service[s] that may 23 otherwise be available . . . .” Id. He further contends that Defendants “refuse[] to respond 24 to 100s of administrative grievances or take any corrective action holding plaintiffs under 25 conditions of punishment for being disabled and depriving them of their constitutional 26 protections against such cruel and unusual punishment and equal protection of the 27 law . . . .” Id. Lastly, in count three, Hawkins claims that “Defendants are depriving 28 Plaintiffs of the right to practice their religion including denial of religious services, books, 1 symbolism, participation in social religious services, [and] denial of religious diets . . . .” 2 Id. at 6. 3 C. 42 U.S.C. § 1983 4 “Section 1983 creates a private right of action against individuals who, acting under 5 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, — 6 — 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of substantive 7 rights, but merely provides a method for vindicating federal rights elsewhere conferred.” 8 Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and citations 9 omitted). “To establish § 1983 liability, a Plaintiff must show both (1) deprivation of a right 10 secured by the Constitution and laws of the United States, and (2) that the deprivation was 11 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 12 F.3d 1128, 1138 (9th Cir. 2012). 13 D. Discussion 14 1. Individual Causation – Defendants Garcia, Trainor and Braden 15 Hawkins names Michael Garcia, William Trainor, and Jackie Braden, employees of 16 the Office of Assigned Counsel (OAC), as Defendants and alleges they “established law 17 policy and procedures that abridge[] the rights of Plaintiffs,” have “failed and refused to 18 establish and maintain access to services for individuals with disabilities,” and are 19 “depriving Plaintiffs of the right to practice their religion.” Compl. at 4-6. OAC is a San 20 Diego County entity which “conducts business with Defendant San Diego County 21 concerning Plaintiff’s due process legal access.” Id. at 2. 22 A person deprives another “of a constitutional right, within the meaning of section 23 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to 24 perform an act which he is legally required to do that causes the deprivation of which [the 25 plaintiff complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Broad and 26 conclusory allegations, however, such as the ones put forth in Hawkins’ Complaint, fail to 27 plausibly show how, or to what extent, each Defendant may be held individually liable for 28 any constitutional injury. See Iqbal, 556 U.S. at 676-77 ; Jones v. Comm’ty Redev. Agency 1 of City of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (even pro se plaintiff must “allege 2 with at least some degree of particularity overt acts which defendants engaged in” in order 3 to state a claim). Instead, “Plaintiff must plead that each Government-official defendant, 4 through [his] own individual actions, has violated the Constitution” in order to plead a 5 plausible claim for relief. Iqbal, 556 U.S. at 676-77 . “The inquiry into causation must be 6 individualized and focus on the duties and responsibilities of each individual defendant 7 whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. 8 Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo v. Goode, 423 U.S. 362 , 370-71 9 (1976)); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986); Estate of Brooks v. United 10 States, 197 F.3d 1245, 1248 (9th Cir. 1999) (stating that “[c]ausation is, of course, a 11 required element of a § 1983 claim.”) Here, Hawkins offers no specific factual allegations 12 to support a claim that any of these named Defendants were responsible for any specific 13 claims Hawkins raises in his Complaint. 14 As to the “Does 1-10” Hawkins has named as Defendants, the Federal Rules of Civil 15 Procedure do not authorize or prohibit the use of fictitious parties, but Rule 10 does require 16 a plaintiff to include the names of all parties in his complaint. See Fed. R. Civ. P. 10(a). 17 Courts especially disfavor Doe pleading in an IFP case because in the event the plaintiff’s 18 complaint alleges a plausible claim for relief, it is effectively impossible for the United 19 States Marshal or deputy marshal to fulfill his or her duty to serve an unnamed defendant. 20 See Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915 (d); Walker v. Sumner, 14 F.3d 1415 , 1422 21 (9th Cir. 1994) (stating that in order to properly effect service under Rule 4 in an IFP case, 22 the plaintiff is required to “furnish the information necessary to identify the defendant.”); 23 Finefeuiaki v. Maui Cmty. Corr. Ctr. Staff & Affiliates, 2018 WL 3580764 , at *6 (D. Haw. 24 July 25, 2018) (noting that “[a]s a practical matter, the United States Marshal cannot serve 25 a summons and complaint on an anonymous defendant.”). 26 “A plaintiff may refer to unknown defendants as Defendant John Doe 1, John Doe 27 2, John Doe 3, and so on, but he must allege specific facts showing how each particular 28 doe defendant violated his rights.” Cuda v. Employees/Contractors/Agents at or OCCC, — 1 — 2019 WL 2062945 , at *4 (D. Haw. May 9, 2019). A plaintiff may also seek discovery to 2 obtain the names of the Does and later amend his pleading in order to substitute the true 3 names of those defendants, unless it is clear that discovery will not uncover their identities, 4 or that his complaint is subject to dismissal on other grounds. See Wakefield v. Thompson, 5 177 F.3d 1160, 1163 (9th Cir. 1999) (emphasis added) (citing Gillespie v. Civiletti, 629 6 F.2d 637 , 642 (9th Cir. 1980)). 7 Hawkins has named “Does 1-10” but, as with the other named Defendants, he makes 8 no specific allegations against any individual Doe in relation to the constitutional violations 9 which form the basis of his suit. Simply put, Hawkins fails to link any particular 10 constitutional violation to any specific, individual state actor, and he fails to even 11 minimally explain how each individual Doe party he seeks to sue personally caused a 12 violation of his constitutional rights. See Compl. at 4-6; Iqbal, 556 U.S. at 677 . As noted 13 above, “[a] plaintiff must allege facts, not simply conclusions, t[o] show that [each 14 defendant] was personally involved in the deprivation of his civil rights.” Barren v. 15 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Estate of Brooks, 197 F.3d at 16 1248. 17 As it stands, Hawkins’ Complaint fails to “plead[] factual content that [would] 18 allow[] the court to draw the reasonable inference that [any individual] defendant is liable 19 for the misconduct alleged.” Iqbal, 556 U.S. at 678 . Accordingly, Defendants Trainor, 20 Garcia, Braden and Does 1-10 must be dismissed. 21 2. Access to Courts 22 Hawkins claims his right to access the courts has been violated because Defendants 23 are making judicial decisions even though they are not judicial officers and are “refus[ing] 24 to file legal documents, block[ing] writs, legal mail, legal tools, legal access to collateral 25 attack, computer instruction or research access . . .” Compl. at 4. Prisoners have a 26 constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996); 27 Bounds v. Smith, 430 U.S. 817, 821 (1977), limited in part on other grounds by Lewis, 518 28 U.S. at 354. The right of access does not require the State, however, to “enable the prisoner 1 to discover grievances,” or even to “litigate effectively once in court.” Id. at 354; see also 2 Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the “inability 3 to file a complaint or defend against a charge”). Instead, Lewis holds: 4 [T]he injury requirement is not satisfied by just any type of frustrated legal claim . . . . Bounds does not guarantee inmates the wherewithal to — 5 — transform themselves into litigating engines capable of filing everything from 6 shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, — 7 — directly or collaterally, and in order to challenge the conditions of their 8 confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and — 9 — incarceration. — 10 — 11 Id. at 354-55; see also Spence v. Beard, No. 2:16-CV-1828 KJN P, 2017 WL 896293 , at 12 *2-3 (E.D. Cal. Mar. 6, 2017). 13 In order to state a claim of a denial of the right to access the courts, a prisoner must 14 establish that he has suffered “actual injury,” a jurisdictional requirement derived from the 15 standing doctrine. Lewis, 518 U.S. at 349 . An “actual injury” is “actual prejudice with 16 respect to contemplated or existing litigation, such as the inability to meet a filing deadline 17 or to present a claim.” Id. at 348 (citation and internal quotations omitted). Indeed, the 18 failure to allege an actual injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152 , 1155 n.1 (9th 19 Cir. 2008) (stating that “[f]ailure to show that a ‘non-frivolous legal claim had been 20 frustrated’ is fatal.”) (quoting Lewis, 518 U.S. at 353 & n.4). In addition to alleging an 21 “actual injury,” Hawkins must also plead facts sufficient to describe the “non-frivolous” or 22 “arguable” nature of underlying claim he contends was lost as result of Defendants’ 23 actions. Christopher v. Harbury, 536 U.S. 403, 416 (2002). The nature and description of 24 the underlying claim must be set forth in the pleading “as if it were being independently 25 pursued.” Id. at 417 . 26 The factual allegations in Hawkins’ Complaint are insufficient to state an access to 27 courts claim. He has not alleged he suffered any “actual prejudice with respect to 28 contemplated or existing litigation.” Lewis, 518 U.S. at 351-53 ; Silva v. Di Vittorio, 658 1 F.3d 1090, 1104 (9th Cir. 2011). Further, although Hawkins claims the Defendants are 2 “obstructing Plaintiffs’ access to the courts with erroneous policy . . . which allows them 3 to make judicial decision although not judicial officers,” and that this policy enables 4 Defendants to “refuse to file legal documents, block writs legal mail, legal tools, legal 5 access to collateral attack,” among other things, he has not provided the Court with the 6 “nature and description” of the claims he wishes to bring nor the “non-frivolous” or 7 “arguable” nature of those claims. Harbury, 536 U.S. at 413-14 . Accordingly, the Court 8 finds Hawkins’ access to courts claims must be dismissed for failing to state a plausible 9 claim upon which § 1983 relief can be granted. See 28 U.S.C. § 1915 (e)(2)(B)(ii), 10 § 1915A(b)(1); Iqbal, 556 U.S. at 678 . 11 3. Americans with Disabilities Act 12 In count two, Hawkins claims Defendants are denying services to disabled inmates, 13 in violation of the Americans with Disabilities Act (“ADA”). Compl at 5. The ADA applies 14 in the prison context. See 42 U.S.C. § 12131 (1)(B); U.S. v. Georgia, 546 U.S. 151 , 154 15 (2006); see also Pierce v. Cty. of Orange, 526 F.3d 1190, 1214 (9th Cir. 2008) (stating that 16 “[i]t is undisputed that Title II applies to the . . . jails’ services, programs, and activities 17 for detainees.”) In order to state a claim under Title II of the ADA, however, a plaintiff 18 must allege: 19 (1) he ‘is an individual with a disability;’ (2) he ‘is otherwise qualified to participate in or receive the benefit of some public entity’s services, programs, — 20 — or activities;’ (3) he ‘was either excluded from participation in or denied the 21 benefits of the public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity;’ and (4) ‘such exclusion, — 22 — denial of benefits, or discrimination was by reason of [his] disability.’ — 23 — 24 O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007) (citing 25 McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004)), (quoting Thompson v. 26 Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam)). 27 Hawkins may not pursue an ADA claim against the individual Defendants in their 28 individual capacities. See Walsh v. Nevada Dep’t of Human Res., 471 F.3d 1033, 1038 (9th 1 Cir. 2006) (holding that the “bar on suits against individual defendants” applies to the 2 ADA); Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (holding that the “ADA 3 applies only to public entities.”); see also Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 4 2002) (“[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official 5 in [his or] her individual capacity to vindicate rights created by Title II of the ADA.”) 6 Further, to the extent Hawkins includes the County of San Diego, which is a public 7 entity subject to suit under Title II, he nevertheless fails to allege that he suffers from any 8 qualified disability, or that he has been discriminated against “by reason of [that] 9 disability.” O’Guinn, 502 F.3d at 1060 . Instead, as noted above, Hawkins offers only vague 10 and conclusory allegations, alleging simply that Defendants “failed and refused to establish 11 and maintain [disabled inmates] access” to various services and have “refus[ed] to respond 12 to 100s of administrative grievances . . . .” Compl. at 5. But to state an ADA claim based 13 on disability discrimination, Hawkins must include factual content to show “either (i) 14 discrimination based on disparate treatment or impact, or (ii) denial of reasonable 15 modifications or accommodations.” Atayde v. NAPA State Hosp., 255 F. Supp. 3d 978 , 16 1000 (E.D. Cal. 2017) (citing Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075 , 1086 17 (9th Cir. 2004)). To show disparate treatment, he must allege that other non-disabled 18 individuals without his disability were treated more favorably. Id. (citing McGary v. City 19 of Portland, 386 F.3d 1259 , 1265–66 (9th Cir. 2004)). To show disparate impact, he must 20 allege that a facially neutral policy has a significantly adverse or disproportionate impact 21 on disabled persons. Id. (citing Lawman v. City & Cty. of San Francisco, 159 F. Supp. 3d 22 1130 , 1148 n.11 (N.D. Cal. 2016)). And to show failure to accommodate, he must allege 23 that public entity knew of his disability but failed to provide reasonable accommodations 24 for it. Id. (citing Robertson v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1196 (9th 25 Cir. 2007)); see also Barnett v. Cty. of Los Angeles, No. 2:20-CV-02530-ODW-ASX, 2020 26 WL 5350286 , at *5 (C.D. Cal. Sept. 3, 2020). Hawkins makes no such allegations; 27 therefore, his ADA claims must be dismissed. See Iqbal, 556 U.S. at 678 . 28 / / / 1 4. Eighth Amendment 2 Hawkins also claims his Eighth Amendment rights have been violated by 3 Defendants’ “failure to establish and maintain access to services for individuals with 4 disabilities, both physical and mental.” Compl. at 5. “Inmates who sue prison officials for 5 injuries suffered while in custody may do so under the Eighth Amendment’s Cruel and 6 Unusual Punishment Clause or, if not yet convicted, under the Fourteenth Amendment’s 7 Due Process Clause.” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 8 2016). “[W]hen determining whether the Eighth or Fourteenth Amendment governs an 9 inmate’s claim, ‘[t]he critical juncture is conviction, either after trial or . . . by plea, at 10 which point the state acquires the power to punish and the Eighth Amendment is 11 implicated.’” Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000) (quoting Berry v. City 12 of Muskogee, 900 F.2d 1489, 1493 (10th Cir. 1990)). Thought Hawkins raises his claims 13 under the Eighth Amendment, he is in custody at the county jail. See Compl. at 1, 5. 14 Because it is unclear whether the Eighth or Fourteenth Amendment applies, the Court will 15 analyze Hawkins’ claims under both amendments. 16 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” 17 U.S. Const. Amend. VIII. Only “unnecessary and wanton infliction of pain” constitutes 18 cruel and unusual punishment as prohibited by the United States Constitution. Whitley v. 19 Albers, 475 U.S. 312, 319 (1986). In order to state a plausible Eighth Amendment claim 20 for relief, a Plaintiff must allege facts sufficient to show that Defendants acted with 21 ‘deliberate indifference.’” Castro, 833 F.3d at 1068 ; Iqbal, 556 U.S. at 678 . “A prison 22 official acts with ‘deliberate indifference . . . only if the [prison official] knows of and 23 disregards an excessive risk to inmate health and safety.’” Toguchi v. Chung, 391 F.3d 24 1051, 1057 (9th Cir. 2004) (quoting Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1187 (9th 25 Cir. 2002), overruled on other grounds by Castro, 833 F.3d at 1076 . “Under this standard, 26 the prison official must not only ‘be aware of facts from which the inference could be 27 drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the 28 inference.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). 1 Hawkins has not sufficiently alleged he was at serious risk of harm. He has not 2 provided sufficient facts to suggest the Defendants’ refusal to “establish and maintain 3 access to services for individuals with disabilities” resulted in “significant injury” or caused 4 “the unnecessary and wanton infliction of pain.” Colwell v. Bannister, 763 F.3d 1060 , 1066 5 9th Cir. 2014). Nor has he provided sufficient facts to show the Defendants knew that 6 failing to provide disabled inmates with religious services, entertainment, library access, 7 etc., created a substantial risk of serious harm. Thus, Hawkins’ Eighth Amendment claim 8 fails because he has not alleged sufficient “factual content that allows the court to draw the 9 reasonable inference that [Defendants are] liable for the misconduct alleged.” Iqbal, 556 10 U.S. at 678. 11 Until recently, the Ninth Circuit applied a single “deliberate indifference” test when 12 analyzing claims brought by persons in custody whether they arose under the Eighth or the 13 Fourteenth Amendment. See Castro, 833 F.3d at 1068 (citing Clouthier v. Cnty. of Contra 14 Costa, 591 F.3d 1232 (9th Cir. 2010)). However, in Kingsley v. Hendrickson, 576 U.S. 389 15 (2015), the Supreme Court made clear that proof of an intent or motive to punish is not 16 required for a pretrial detainee to prevail on a claim that his due process rights were violated 17 and concluded that “a pretrial detainee can prevail by providing only objective evidence 18 that the challenged governmental action is not rationally related to a legitimate 19 governmental objective or that it is excessive in relation to that purpose.” Id. at 398 . The 20 Ninth Circuit has interpreted Kingsley as “reject[ing] the notion that there exists a single 21 ‘deliberate indifference’ standard applicable to all § 1983 claims, whether brought by 22 pretrial detainees or by convicted prisoners.” Castro, 833 F.3d at 1069 . The Ninth Circuit 23 held in Castro that an objective standard of reasonableness should apply to failure-to24 protect claims under the Fourteenth Amendment, id. at 1070-71 , and has since extended 25 the “objective deliberate indifference” standard to Fourteenth Amendment claims of 26 inadequate medical care. See Gordon v. Cty. of Orange, 888 F.3d 1118, 1120 (9th Cir. 27 2018); see also Sandoval v. Cty. of San Diego, No. 18-55289, 2021 WL 116539 , at *7 (9th 28 Cir. Jan. 13, 2021) (explaining how Kingsley “cast doubt on [the Ninth Circuit’s] practice 1 of evaluating Eighth Amendment and Fourteenth Amendment claims under the same 2 standard.”). 3 It remains unclear if Kingsley’s objective deliberate indifference standard applies 4 beyond excessive force, failure-to-protect, and medical care claims to encompass all claims 5 raised by a pretrial detainee involving the conditions of his or her confinement. See Cheung 6 v. Sequeira, Civ. No. 17-00257 DKW-KSC, 2017 WL 3431586 , at *3 (D. Haw. Aug. 8, 7 2017) (noting that only the Second Circuit has extended Kingsley’s holdings to all pretrial 8 detainee deliberate indifference conditions of confinement claims). After Gordon, 9 however, district courts in the Ninth Circuit have applied the objective deliberate 10 indifference standard to pretrial conditions of confinement claims generally. See, e.g., 11 Turano v. Cnty. of Alameda, No. 17-cv-06953-KAW, 2018 WL 3054853 , at *6 (N.D. Cal. 12 June 20, 2018) (finding the Ninth Circuit’s reasoning in Gordon applies to conditions of 13 confinement claims); Smith v. Cnty. of Riverside Sheriff Dept., No. EDCV 17-1969-DSF 14 (SP), 2019 WL 2880419 , at *8 (C.D. Cal. Mar. 1, 2019) (finding that if plaintiff was a 15 pretrial detainee, the objective deliberate indifference standard should apply to his “broader 16 conditions of confinement claims”). Accordingly, in the event Hawkins has not yet been 17 convicted, the Court will also apply the Kingsley standard to his conditions of confinement 18 claims. 19 To state a claim for deliberate indifference under the Fourteenth Amendment, a 20 pretrial detainee must establish the following four elements: 21 (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put — 22 — the plaintiff at substantial risk of suffering serious harm; (iii) the defendant 23 did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high — 24 — degree of risk involved—making the consequences of the defendant’s conduct 25 obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries. — 26 — 27 Castro, 833 F.3d at 1071 . “With respect to the third element, the defendant’s conduct must 28 be objectively unreasonable.” Id. (citing Kingsley, 576 U.S. at 396 ). The plaintiff must 1 allege “more than negligence but less than subjective intent‒‒something akin to reckless 2 disregard.” Id. The “‘mere lack of due care by a [county] official does not deprive an 3 individual of life, liberty, or property under the Fourteenth Amendment.” Id. (quoting 4 Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). 5 Here, Hawkins fails to allege facts sufficient to plausibly show that the failure to 6 establish and maintain access to services for individuals with mental and physical 7 disabilities put him at substantial risk of suffering serious harm, that Defendants failed to 8 take reasonable measures to abate that risk, or that a reasonable person in the Defendants’ 9 position would have appreciated a high risk of harm existed under the circumstances. Id. 10 Instead, Hawkins merely proclaims that the conditions of his confinement in the SDCJ 11 constitute “cruel and unusual punishment.” See Compl. at 5. But without more, these types 12 of conclusory allegations are also insufficient to state a plausible Fourteenth Amendment 13 claim. See Iqbal, 556 U.S. at 679 (stating that “[w]hile legal conclusions can provide the 14 framework of a complaint, they must be supported by factual allegations”). 15 5. Equal Protection 16 Hawkins also alleges in count two that the denial of services to disabled inmates 17 violates the Equal Protection Clause of the Fourteenth Amendment. Compl. at 5. The Equal 18 Protection Clause “is essentially a direction that all persons similarly situated should be 19 treated alike.” See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); 20 see also Vacco v. Quill, 521 U.S. 793 , 799 (1997) (citing Plyler v. Doe, 457 U.S. 202 , 216 21 (1982) and Tigner v. Texas, 310 U.S. 141, 147 (1940)); Fraley v. Bureau of Prisons, 1 F.3d 22 924, 926 (9th Cir. 1993) (per curiam). To establish an equal protection violation, Hawkins 23 must demonstrate “that the [challenged action], either on its face or in the manner of its 24 enforcement, results in members of a certain group being treated differently from other 25 persons based on membership in that group.” McLean v. Crabtree, 173 F.3d 1176 , 1185 26 (9th Cir. 1999). “Second, if it is demonstrated that a cognizable class is treated differently, 27 the court must analyze under the appropriate level of scrutiny whether the distinction made 28 between the two groups is justified.” Id. (citation and quotations omitted). If the aggrieved 1 party is a member of a protected or suspect class, or otherwise suffers the unequal 2 burdening of a fundamental right, the court applies strict scrutiny. City of Cleburne, 473 3 U.S. at 439-40. “Government actions that do not . . . involve suspect classifications will be 4 upheld if [they] are rationally related to a legitimate state interest.” Fields v. Palmdale Sch. 5 Dist., 427 F.3d 1197 , 1208 (9th Cir. 2005). 6 “‘[T]he disabled do not constitute a suspect class for equal protection purposes’” and 7 therefore the questioned government action need only be rationally related to a legitimate 8 government interest. See Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001) 9 (quoting Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996)). Hawkins has not 10 made a sufficient showing that the denial of services he claims are occurring is not 11 rationally related to a legitimate government interest, nor that “members of a certain group 12 [are] being treated differently from other persons based on membership in that group.” 13 McLean, 173 F.3d at 1185. He simply alleges that disabled inmates are being denied certain 14 services, which is not sufficient to plausibly state an Equal Protection claim. “Intentional 15 discrimination means that a defendant acted at least in part because of a plaintiff’s protected 16 status.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (emphasis in original) 17 (quoting Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994)). Accordingly, 18 the Court dismisses this claim pursuant to 28 U.S.C. § 1915A(b)(1) because Hawkins has 19 not plausibly alleged a § 1983 claim upon which relief could be granted. Iqbal, 556 U.S. at 20 678. 21 6. Freedom of Religion 22 In count three, Hawkins claims his right to “freedom of religion” has been violated 23 by Defendants. Compl. at 6. The First Amendment bars the government from, among other 24 things, “making a law prohibiting the free exercise of religion.” Hartmann v. Cal. Dep’t 25 Corrs. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). Although Hawkins does not 26 specifically invoke it, the Court liberally construes Hawkins’ Complaint as attempting to 27 state claims under both the First Amendment and the Religious Land Use and 28 Institutionalized Persons Act (“RLUIPA”). See 42 U.S.C. § 2000cc-1(a); see also Alvarez 1 v. Hill, 518 F.3d 1152, 1157-58 (9th Cir. 2008) (noting that a prisoner need not identify 2 RLUIPA as a cause of action in order to state a claim based upon that law). Section 3 of 3 RLUIPA provides that “[n]o government shall impose a substantial burden on the religious 4 exercise of a person residing in or confined to an institution . . . even if the burden results 5 from a rule of general applicability” absent a showing that the burden imposed is “in 6 furtherance of a compelling government interest” and “is the least restrictive means of 7 furthering . . . that interest.” 42 U.S.C. § 2000cc-1(a). 8 Hawkins’ Complaint fails to state a First Amendment free exercise or RLUIPA claim 9 against Defendants. In order to state a free exercise claim, Hawkins must “show that the 10 government action in question substantially burdens the person’s practice of [their] 11 religion. “A substantial burden places more than an inconvenience on religious exercise; it 12 must have a tendency to coerce individuals into acting contrary to their religious beliefs or 13 exert substantial pressures on an adherent to modify his behavior and to violate his beliefs.” 14 Jones v. Williams, 791 F.3d 1023, 1031-32 (9th Cir. 2015) (internal citations, quotation 15 marks, and alterations omitted). Similarly, the Ninth Circuit has explained that a 16 “‘substantial burden’” sufficient to state a RLUIPA claim is a “‘significantly great 17 restriction or onus upon [religious] exercise,’” and “[i]n the context of a prisoner’s 18 constitutional challenge to institutional policies, [the Ninth Circuit] has held that a 19 substantial burden occurs ‘where the state . . . denies [an important benefit] because of 20 conduct mandated by religious belief, thereby putting substantial pressure on an adherent 21 to modify his behavior and to violate his beliefs.’” Hartmann, 707 F.3d at 1124 -25 (quoting 22 San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024 , 1039 (9th Cir. 2004); 23 Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005)). 24 Applying either framework, Hawkins has not plausibly alleged how Defendants 25 have placed a substantial burden on his religious exercise, and how, if at all, the conduct 26 alleged “prevented him from fulfilling the commandments” of his religion. Cf. Wolcott v. 27 Bd. of Rabbis, 738 F. App’x 538 , 539 (9th Cir. 2018) (explaining that non-conclusory 28 allegations “that [plaintiff’s] possession and use of Jewish artifacts were restricted, such 1 restriction prevented him from fulfilling the commandments of the Jewish faith, and a 2 substantial burden on his exercise of Judaism resulted” were sufficient to survive screening 3 pursuant to 28 U.S.C. Section 1915A). Instead, he simply makes conclusory allegations 4 that “Defendants are depriving Plaintiffs of the right to practice their religion” by denying 5 them religious services, books, symbolism, and diets. Compl. at 6. As a result, Hawkins’ 6 First Amendment free exercise and RLUIPA claims in count three of his Complaint must 7 be dismissed for failure to state a claim upon which relief can be granted. See 28 U.S.C. 8 § 1915(e)(2); 28 U.S.C. § 1915A(b); Iqbal, 556 U.S. at 678 . 9 7. Defendant San Diego County 10 Hawkins’ claims against the County of San Diego are also insufficient. In order to 11 establish a county’s liability pursuant to 42 U.S.C. § 1983 , “[a] plaintiff[] must show that 12 the challenged conditions were part of a policy, custom or practice officially adopted by 13 defendants.” Upshaw v. Alameda County, 377 F. Supp. 3d 1027, 1032 (N.D. Cal. March 14 27, 3019) (citing Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978)). A 15 plaintiff must also allege that “the policy or custom “evince[s] a ‘deliberate indifference’ 16 to the constitutional right and [is] the ‘moving force behind the constitutional violation.’” — 17 — Id. (citing Rivera v. County of L.A., 745 F.3d 384, 389 (9th Cir. 2014)). “Mere negligence 18 or accident” are not sufficient. Kingsley, 576 U.S. at 395 . Here, Hawkins’ Complaint fails 19 to allege that any staff at SDCJ acted pursuant to a county policy or custom. Therefore, he 20 fails to state a claim upon which relief may be granted pursuant to § 1983 as to the County 21 of San Diego. 22 8. Defendants San Diego County Jail and Office of Assigned Counsel 23 To the extent Hawkins names the “San Diego County Jail” and “Office of Assigned 24 Counsel” as Defendants, he fails to state a claim upon which § 1983 relief may be granted. 25 As the Court has noted, “[t]o establish § 1983 liability, a Plaintiff must show both (1) 26 deprivation of a right secured by the Constitution and laws of the United States, and (2) 27 that the deprivation was committed by a person acting under color of state law.” Tsao, 698 28 F.3d at 1138 (emphasis added). “Persons” under § 1983 are state and local officials sued 1 in their individual capacities, private individuals and entities which act under color of state 2 law, and/or the local governmental entity itself; departments of municipal entities are not 3 “persons” subject to suit under § 1983. See Vance v. County of Santa Clara, 928 F. Supp. 4 993, 995-96 (N.D. Cal. 1996) (stating that “[n]aming a municipal department as a 5 defendant is not an appropriate means of pleading a § 1983 action against a municipality”) 6 (citation omitted). The SDCJ and OAC are departments of the County of San Diego;2 they 7 are not “persons” subject to suit under § 1983. See e.g., Salas v. San Diego County Jail, — 8 — 2018 WL 1394283 , at *3 (S.D. Cal. Apr. 8, 2016); Jones v. San Diego County Jail, 2013 9 WL 5670923394 , at *2 (S.D. Cal. Oct. 15, 2013); Rodriguez v. Cnty. of Contra Costa, 2013 10 WL 5946112 , at *3 (N.D. Cal. Nov. 5, 2013) (citing Hervey v. Estes, 65 F.3d 784, 791 (9th 11 Cir. 1995)) (stating that “[a]lthough municipalities, such as cities and counties, are 12 amenable to suit under Monell [v. Dep’t of Social Servs, 436 U.S. 658 (1978)], sub13 departments or bureaus of municipalities . . . are not generally considered ‘persons’ within 14 the meaning of § 1983.”). Accordingly, Hawkins’ claims against San Diego County Jail 15 and the Office of Assigned Counsel are dismissed sua sponte for failure to state a plausible 16 claim and for seeking monetary relief against an immune defendant. See 28 U.S.C. 17 § 1915(e)(2)(B); 28 U.S.C. § 1915A(b). 18 IV. Motion for ADA Access [ECF No. 3] and Motion for Class Certification [ECF 19 No. 4] 20 Hawkins has also filed a document entitled “Motion for ADA Access Fed. Rules of 21 Regulations 35.107/CRC 1.100.” See ECF No. 3. The document states: “Plaintiffs — 22 — — 23 — — 24 — 2 See https://www.sandiegocounty.gov/content/sdc/oac/aboutus.html (last visited Jan. 27, 25 2021) (“The San Diego County Office of Assigned Counsel (OAC) was established by County resolution on December 9, 2008, as an independent and ethically separate division — 26 — of the Department of the Public Defender. [¶] OAC arranges for high quality legal 27 representation on behalf of individuals charged with a crime in state court who are entitled by law to court appointed attorney services but who cannot be represented by the Public — 28 — 1 complain that they have made requests to access court ADA coordinator according to fed. 2 rule of regulations 35.107 and CRC 1.100 and received no response [thereby] being 3 discriminated against as qualified ADA individuals and now motion for clarity on this 4 matter by the court.” Id. He has also filed a Motion for Class Certification. See ECF No. 4. 5 Because the Court has concluded that Hawkins has not stated a plausible claim for relief, 6 the motions are DENIED without prejudice. 7 V. Motion for Appointment of Counsel [ECF No. 5] 8 Hawkins also seeks the appointment of counsel because of the complexity of the 9 case. (Mot. to Appt. Counsel, ECF No. 3 at 1.) There is no constitutional right to counsel 10 in a civil case. Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, — 11 — 560 F.3d 965, 970 (9th Cir. 2009). And while 28 U.S.C. § 1915 (e)(1) grants the district 12 court limited discretion to “request” that an attorney represent an indigent civil litigant, 13 Agyeman v. Corr. Corp. of America, 390 F.3d 1101 , 1103 (9th Cir. 2004), this discretion 14 may be exercised only under “exceptional circumstances.” Id.; see also Terrell v. Brewer, — 15 — 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances requires the 16 Court “to consider whether there is a ‘likelihood of success on the merits’ and whether ‘the 17 prisoner is unable to articulate his claims in light of the complexity of the legal issues 18 involved.’” Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, — 19 — 560 F.3d at 970 ). 20 As currently pleaded, Hawkins’ Complaint demonstrates neither the likelihood of 21 success nor the legal complexity required to support the appointment of pro bono counsel 22 pursuant to 28 U.S.C. § 1915 (e)(1). See Terrell, 935 F.3d at 1017; Palmer¸560 F.3d at 970. 23 First, while Hawkins may not be formally trained in law, his allegations, as liberally 24 construed, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), show he nevertheless is fully 25 capable of legibly articulating the facts and circumstances relevant to his claims which are 26 not legally “complex.” Agyeman, 390 F.3d at 1103. Second, for the reasons discussed 27 above, Hawkins’ Complaint requires sua sponte dismissal pursuant to 28 U.S.C. 28 § 1915(e)(2) and § 1915A, and it is simply too soon to tell whether he will be likely to 1 succeed on the merits of any potential constitutional claim against any of the named 2 Defendants. Id. Finally, Hawkins states that counsel should be appointed “due to the 3 complexities of a class action [lawsuit].” ECF No. 5 at 1. The Court has denied Hawkins’ 4 Motion for Class Certification, as discussed above, and thus this is not a valid reason for 5 the appointment of counsel in this case. 6 Accordingly, the Court finds no “exceptional circumstances” currently exist and 7 DENIES Hawkins’ Motion to Appoint Counsel (ECF No. 5) without prejudice on that 8 basis. See, e.g., Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (affirming denial of 9 counsel where prisoner could articulate his claims in light of the complexity of the issues 10 involved and did not show likelihood of succeed on the merits). 11 VI. Motion for Temporary Restraining Order [ECF No. 6] 12 Hawkins also seeks immediate injunctive relief. See Mot. for TRO, ECF No. 6. In 13 his motion, Hawkins makes the same basic allegations as he does in his Complaint. Id. He 14 claims that “without intervention by this Court Plaintiffs will suffer irreparable injury and 15 harm in their cases in that they will continue to be denied fair hearings by way of the denial 16 of the tools necessary to prosecute their claims in opposition” because “the Defendants 17 have developed laws, procedures, regulations or policies that abridge the Plaintiff’s const. 18 rights under California [and] United States.” ECF No. 6 at 2-3. He further states that “the 19 tools defined by the federal courts are access to copying, service and research for 20 meaningful access to the courts.” Id. at 3. 21 To the extent Hawkins seeks a TRO without notice upon an adverse party, he cannot 22 prevail because his submission fails to set out “specific facts in an affidavit or a verified 23 complaint . . . [which] clearly show that immediate and irreparable injury, loss, or damage 24 will result . . . before the adverse party can be heard in opposition.” Fed. R. Civ. P. 25 65(b)(1)(A); Gomez v. Vernon, 255 F.3d 1118, 1128 (9th Cir. 2001) (stating that 26 “injunctive relief is ‘to be used sparingly, and only in a clear and plain case,’” especially 27 when the court is asked to enjoin the conduct of a state agency) (quoting Rizzo v. Goode, — 28 — 423 U.S. 362, 378 (1976)). 1 Second, a plaintiff seeking a preliminary injunction must establish: (1) a likelihood 2 of succeed on the merits; (2) a likelihood that plaintiff will suffer irreparable harm in the 3 absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that 4 an injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7 , 20 5 (2008). “The standard for issuing a temporary restraining order is identical to the standard 6 for issuing a preliminary injunction.” Lockheed Missile & Space Co., Inc. v. Hughes 7 Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995); see also Stuhlbarg Intern. Sales 8 Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832 , 839 n.7 (9th Cir. 2001) (stating 9 that standards for issuing a TRO are “substantially identical” to those for issuing a 10 preliminary injunction). As the movant, Hawkins “must do more than merely allege 11 imminent harm sufficient to establish standing; [he] must demonstrate immediate 12 threatened injury as a prerequisite to preliminary injunctive relief.” Caribbean Marine 13 Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 674-675 (9th Cir. 1988) (noting that speculative 14 injury does not constitute irreparable harm sufficient to warrant granting a preliminary 15 injunction) (internal citations omitted). 16 Hawkins’ allegations do not meet these standards. He fails to state a plausible claim 17 for relief and therefore he has not shown any likelihood of success on the merits of those 18 claims. See Pimental v. Dreyfus, 670 F.3d 1096, 1111 (9th Cir. 2012) (stating that “at an 19 irreducible minimum,” the party seeking immediate injunctive relief “must demonstrate a 20 fair chance of success on the merits, or questions serious enough to require litigation”). He 21 has also not established that he will “suffer irreparable harm in the absence of preliminary 22 relief,” nor has he “demonstrated immediate threatened injury.” Winter, 555 U.S. at 20 ; 23 Caribbean Marine Servs. Co., Inc., 844 F.2d at 674-675. For these reasons, Hawkins’ 24 Motion for TRO (ECF No. 6) is DENIED. 25 VII. Conclusion and Orders 26 Good cause appearing, the Court: 27 1. DENIES in part the Motion to Proceed IFP as to Plaintiff Dunsmore pursuant 28 to 28 U.S.C. Section 1915 (g) (ECF No. 2); 1 2. DISMISSES this civil action sua sponte without prejudice as to Plaintiff 2 Dunsmore for failing to prepay the $400 civil and administrative filing fees required by 28 3 U.S.C. § 1914 (a) and directs the Clerk of Court to DISMISS Daryl Dunsmore as a plaintiff 4 in this action; 5 3. GRANTS in part the Motion to Proceed IFP as to Plaintiff Hawkins pursuant 6 to 28 U.S.C. § 1915 (a) (ECF No. 2); 7 4. DIRECTS the Watch Commander for the San Diego Central, or their 8 designee, to collect from Hawkins’ trust account the $350 filing fee owed by collecting 9 monthly payments from Hawkins’ account in an amount equal to twenty percent (20%) of 10 the preceding month’s income and forwarding those payments to the Clerk of the Court 11 each time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915 (b)(2). ALL 12 PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER 13 ASSIGNED TO THIS ACTION; 14 5. DIRECTS the Clerk of the Court to serve a copy of this Order on Watch 15 Commander, San Diego Central Jail, 1173 Front Street, San Diego, CA 92101; 16 6. DENIES Hawkins’ Motion for ADA Access (ECF No. 3); 17 7. DENIES Hawkins’ Motion for Class Certification (ECF No. 4); 18 8. DENIES Hawkins’ Motion for Appointment of Counsel (ECF No. 5); 19 9. DENIES Hawkins’ Motion for TRO (ECF No. 6); 20 10. DISMISSES Hawkins’ Complaint for failing to state a claim upon which 21 relief may be granted pursuant to 28 U.S.C. Section 1915 (e)(2)(B)(ii) and Section 22 1915A(b)(1). 23 11. GRANTS Hawkins sixty (60) days leave from the date of this Order in which 24 to file an Amended Complaint which cures all the deficiencies of pleading noted above. 25 Hawkins’ Amended Complaint must be complete by itself without reference to his original 26 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint 27 will be considered waived. See S.D. Cal. Civ. L.R. 15.1; Hal Roach Studios, Inc. v. Richard 28 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 1 ||supersedes the original.’’); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 2 || (noting that claims dismissed with leave to amend which are not re-alleged in an amended 3 || pleading may be “considered waived if not repled.”’). 4 If Hawkins fails to file an Amended Complaint within the time provided, the Court 5 || will enter a final Order dismissing this civil action based both on Hawkins’ failure to state 6 ||a claim upon which relief can be granted pursuant to 28 U.S.C. Sections 1915 (e)(2)(B)(i1) 7 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring 8 |}amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does 9 ||not take advantage of the opportunity to fix his complaint, a district court may convert the 10 || dismissal of the complaint into dismissal of the entire action.’’). 11 IT IS SO ORDERED. 12 |} Dated: February 16, 2021 BME: ie Z. A a 13 Hon. William Q. Hayes 14 United States District Court — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — 27 oo