Marin v. Catano

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 MEL MARIN, Case No.: 21-CV-1445 JLS (LL) 12 Plaintiff, ORDER (1) GRANTING 13 v. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS; 14 KRISTINE CATANO; ADELA (2) SCREENING AND DISMISSING DE LA TORRE; VANESSA RUIZ; and 15 PLAINTIFF’S COMPLAINT JOSEPH I. CASTRO, in their PURSUANT TO 28 U.S.C. 16 official and personal capacities; and § 1915(e)(2); AND (3) DENYING SAN DIEGO STATE UNIVERSITY, 17 WITHOUT PREJUDICE Defendants. PLAINTIFF’S MOTION FOR [18] TEMPORARY RESTRAINING 19 ORDER AND PRELIMINARY INJUNCTION [20] 21 (ECF Nos. 1–3) [22] 23 Presently before the Court are Plaintiff Mel Marin’s Complaint (“Compl.,” ECF No. 24 1); Motion to Proceed in Forma Pauperis (“IFP Mot.,” ECF No. 2); and Motion for 25 Temporary Restraining Order and Preliminary Injunction (“TRO Mot.,” ECF No. 3). 26 Having carefully considered these filings and the applicable law, the Court GRANTS 27 Plaintiff’s IFP Motion, DISMISSES Plaintiff’s Complaint WITH LEAVE TO AMEND, 28 and DENIES WITHOUT PREJUDICE Plaintiff’s TRO Motion. 1 IN FORMA PAUPERIS MOTION 2 All parties instituting any civil action, suit, or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $402.1 See 28 U.S.C. § 1914 (a). An action may proceed despite a plaintiff’s failure to 5 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”) 6 pursuant to 28 U.S.C. § 1915 (a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 7 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Although the statute does 8 not specify the qualifications for proceeding IFP, the plaintiff’s affidavit must allege 9 poverty with some particularity. Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). 10 Granting a plaintiff leave to proceed IFP may be proper, for example, when the affidavit 11 demonstrates that paying court costs will result in a plaintiff’s inability to afford the 12 “necessities of life.” Id. The affidavit, however, need not demonstrate that the plaintiff is 13 destitute. Id. 14 Here, Plaintiff’s IFP Motion establishes that he has an income of “about $750 a 15 month in the nature of a pension based on prior military duty.” IFP Mot. at 4; see also 16 Application to Proceed in District Court Without Prepaying Fees or Costs (“Affidavit,” 17 ECF No. 2) at 1–2. Plaintiff reports having $165.00 in cash and owning a motor vehicle 18 worth approximately $600. See Affidavit at 2–3. Plaintiff further indicates that he has two 19 checking accounts and a savings account, although he does not provide balance information 20 for those accounts. See id. at 2. Plaintiff’s monthly expenses of $895.00 exceed his 21 monthly income. See id. at 4–5. The Court therefore concludes that Plaintiff adequately 22 has demonstrated that paying the $402 filing fee would result in his inability to afford the 23 necessities of life. Accordingly, the Court GRANTS Plaintiff’s IFP Motion. 24 / / / [26] 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52. [27] See 28 U.S.C. § 1914 (a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 28 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to 1 SCREENING PURSUANT TO 28 U.S.C. § 1915 (e)(2) 2 I. Standard of Review 3 Because Plaintiff is proceeding IFP, his Complaint requires a pre-answer screening 4 pursuant to 28 U.S.C. § 1915 (e)(2). See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th 5 Cir. 2002) (per curiam) (holding 28 U.S.C. § 1915 (e)(2) screening applies to non-prisoners 6 proceeding IFP); see also Lopez v. Smith, 203 F.3d 1122 , 1126–27 (9th Cir. 2000) (en banc) 7 (discussing 28 U.S.C. § 1915 (e)(2)). Under this statute, the Court sua sponte must dismiss 8 a complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks 9 damages from defendants who are immune. See Lopez, 203 F.3d at 1126–27. “The 10 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not 11 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903 , 920 n.1 (9th Cir. 12 2014) (citations omitted). 13 “The standard for determining whether a plaintiff has failed to state a claim upon 14 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 15 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 16 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual 17 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 18 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 19 1121. Detailed factual allegations are not required, but “[t]hreadbare recitals of the 20 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 21 Iqbal, 556 U.S. at 678 . “Determining whether a complaint states a plausible claim for relief 22 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 23 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 24 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 25 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 26 Further, “[w]hile factual allegations are accepted as true, legal conclusions are not.” 27 Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753 , at *3 (E.D. Cal. June 28 28, 2012) (citing Iqbal, 556 U.S. at 678 ). Courts cannot accept legal conclusions set forth 1 in a complaint if the plaintiff has not supported his contentions with facts. Id. (citing Iqbal, [2] 556 U.S. at 679 ). 3 “Generally, district courts may not consider material outside the pleadings when 4 assessing the sufficiency of a complaint under Rule 12(b)(6) of the Federal Rules of Civil 5 Procedure.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018) 6 (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)). “There are two 7 exceptions to this rule: the incorporation-by-reference doctrine, and judicial notice 8 under Federal Rule of Evidence 201.” Id. 9 Pursuant to Federal Rule of Evidence 201(b), “[t]he court may judicially notice a 10 fact that is not subject to reasonable dispute because it: (1) is generally known within the 11 trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from 12 sources whose accuracy cannot reasonably be questioned.” “Accordingly, ‘[a] court may 13 take judicial notice of matters of public record without converting a motion to dismiss into 14 a motion for summary judgment.’” Khoja, 899 F.3d at 999 (quoting Lee, 250 F.3d at 689 ). 15 “But a court cannot take judicial notice of disputed facts contained in such public 16 records.” Id. (citing Lee, 250 F.3d at 689 ). 17 “Even if a document is not attached to a complaint, it may be incorporated by 18 reference into a complaint if the plaintiff refers extensively to the document or the 19 document forms the basis of the plaintiff’s claim.” United States v. Ritchie, 342 F.3d 903 , 20 908 (9th Cir. 2003) (citing Van Buskirk v. Cable News Network, Inc., 284 F.3d 977 , 980 21 (9th Cir. 2002); Branch v. Tunnell, 14 F.3d 449 , 453–54 (9th Cir. 1994), overruled on other 22 grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Venture Assoc. 23 Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)). “‘[T]he mere mention 24 of the existence of a document is insufficient to incorporate the contents of a document’ 25 under Ritchie.” Khoja, 899 F.3d at 1002 (quoting Coto Settlement v. Eisenberg, 593 F.3d 26 1031, 1038 (9th Cir. 2010)). Nonetheless, a document may still form the basis of the 27 plaintiff’s claim where “the claim necessarily depend[s] on the[ document].” Id. (citing 28 Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)). “However, if the document merely 1 creates a defense to the well-pled allegations in the complaint, then that document did not 2 necessarily form the basis of the complaint.” Id. When a document is incorporated by 3 reference, “the district court may treat such a document as part of the complaint, and thus 4 may assume that its contents are true for purposes of a motion to dismiss under Rule 5 12(b)(6).” Ritchie, 342 F.3d at 908 ; see also Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 6 2006) (“The court may treat . . . a document [incorporated by reference] as ‘part of the 7 complaint, and thus may assume that its contents are true for purposes of a motion to 8 dismiss under Rule 12(b)(6).’”) (citing Ritchie, 342 F.3d at 908 ). Nonetheless, “it is 9 improper to assume the truth of an incorporated document if such assumptions only serve 10 to dispute facts stated in a well-pleaded complaint.” Khoja, 899 F.3d at 1003 . 11 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim12 Panahi v. L.A. Police Dep’t, 839 F.2d 621 , 623 (9th Cir. 1988). The district court should 13 grant leave to amend if it appears “at all possible that the plaintiff can correct the defect,” 14 unless the court determines that “the pleading could not possibly be cured by the allegation 15 of other facts.” Lopez v. Smith, 203 F.3d 1122 , 1130–31 (9th Cir. 2000) (en banc) (citing 16 Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t, [17] 901 F.2d 696, 701 (9th Cir. 1990)). 18 II. Plaintiff’s Factual Allegations 19 Plaintiff alleges that he is a student at San Diego State University (“SDSU”). Compl. 20 ¶ 1. Plaintiff claims that, “[o]n July 27, 2021 defendants created a rule that bars students 21 from in-person instruction hereafter if the student cannot show proof of COVID 22 vaccination even if the unvaccinated student wears a mask. Exhibit A is unassailable proof 23 of it.” Id. ¶ 3. He claims that this rule “bars students with medical conditions that caution 24 against a vaccine, in violation of Section 504 of the Rehabilitation Act of 1973.” Id. ¶ 5. 25 Plaintiff is a disabled veteran with medical issues who is therefore barred from attending 26 classes. Id. ¶ 6. Plaintiff further claims that the decision whether to get the vaccine is 27 protected First Amendment expression, id. ¶ 7, and that the policy is counter to AB-86, 28 / / / 1 which “bars any California school from denying in-person instruction to students who fail 2 to provide proof of vaccination,” id. ¶¶ 11–12 (emphasis in original). 3 Plaintiff additionally claims that SDSU faculty are “governed by a rule requiring 4 teachers and staff to examine the academic preparation of each student before allowing him 5 into upper division course work, and apprise him honestly of any risks. [SDSU] also ha[s] 6 a duty to students, to train [its] faculty and supervise them to follow these college rules.” 7 Id. ¶ 46. Plaintiff claims SDSU failed to train its faculty according to this rule, and that 8 faculty failed to abide by the rule. Id. ¶ 47. Plaintiff alleges that one of his teachers lied 9 to him about the scope of material that would be covered and tested in a “viral class” in 10 which Plaintiff enrolled “in order to add students and prevent drops before the drop 11 deadline, to get paid more money.” Id. ¶¶ 48–50. Plaintiff claims he missed the drop 12 deadline as a result. Id. ¶ 56. Plaintiff also claims a second teacher misstated the difficulty 13 of a biology class, and as a result he had to withdraw late from both classes “to avoid 14 disaster that could ruin his 3.8 GPA in sciences, and by then it was too late to take other 15 classes he needed to fill those gaps.” Id. ¶ 58. 16 Plaintiff also asserts that one or more of Defendants retaliated against him for 17 complaining in 2020 about his teacher’s above-alleged fraud and the resultant delay in his 18 education by, among other things, denying him an internship; falsely claiming he enrolled 19 in a class in the spring of 2021 for which he allegedly failed to pay, causing a “hold” to be 20 entered on his account to bar him from registering for additional classes; and refusing to 21 allow Plaintiff to drop a chemistry class he was unable to complete due to SDSU’s Covid22 19 policies. Id. ¶ 62. Plaintiff infers from the fact that “[he] did not receive in the mail a 23 refund of the tuition he paid for the lab class in 2020” that “it can only mean SDSU denied 24 the request to drop the class late without a grade, and secretly denied the refund, and entered 25 an ‘F’ for the chemistry lab class.” Id. Plaintiff indicates that students were permitted in 26 the spring of 2020 to withdraw from classes without adverse grades due to the Covid-19 27 pandemic despite the drops being past the drop deadline, but that he applied for special 28 access to the lab for his chemistry class “because he was engaged in research with his 1 professor to find a cure for the COVID” and, as a result, was given an “incomplete” grade 2 and was required to complete the coursework by May 2021. Id. ¶¶ 85–86. His request for 3 lab access, however, later was denied because Plaintiff was not a Ph.D. candidate, and 4 Plaintiff was not informed of a lift of the bar on his lab access until April 2021, at which 5 point “it was impossible to do 6 months of lab work in the remaining month,” causing 6 Plaintiff to “petition[] to late drop . . . the chemistry class due to impossibility,” which 7 request Plaintiff again infers was denied. Id. ¶¶ 87–91. Finally, Plaintiff claims that, on 8 August 4, 2021, he requested access to and a copy of all the SDSU records pertaining to 9 him for the past three years, including e-mails, but that his request was denied on August 10 11, 2021. Id. ¶¶ 102–04. 11 Plaintiff asserts six claims: (1) declaratory judgment and injunction; (2) negligence 12 (res ipsa loquitur); (3) negligence (res ipsa loquitur and common law); (4) retaliation in 13 violation of the First and Fourteenth Amendments of the U.S. Constitution and the Civil 14 Rights Act (the “CRA”); (5) denial of Equal Protection in violation of the Fourteenth 15 Amendment and the CRA; and (6) violation of the California Information Practices Act of 16 1977. See generally Compl. The claims are asserted against SDSU; Kristine Catano, 17 SDSU’s Global Campus College Registrar; Adela de la Torre, the President of SDSU; 18 Vanessa Ruiz, whose role at SDSU is not specified; and Joseph I. Castro, the Chancellor 19 of the California State Colleges. See Compl. at 1; id. ¶ 2. Plaintiff sues Catano, de la Torre, 20 Ruiz, and Castro (collectively, the “Individual Defendants”) in both their official and 21 personal capacities. See id. at 1. 22 III. Analysis 23 A. Federal Claims 24 1. Eleventh Amendment Immunity 25 As an initial matter, “the Eleventh Amendment bars suits against a state brought by 26 its own citizens, whether the relief sought is money damages or an injunction.” Seater v. 27 Cal. State Univ., Fullerton, 48 F.3d 1228 (9th Cir. 1995) (citing Atascadero State Hosp. v. 28 Scanlon, 473 U.S. 234, 241 (1985); Shaw v. Cal. Dep’t of Alcoholic Beverage Control, 788 1 F.2d 600, 603 (9th Cir. 1986)). “Moreover, agencies of the state, such as California state 2 colleges and universities, are similarly immune from private damage actions or suits for 3 injunctive relief brought in federal court pursuant to 42 U.S.C. § 1983 .” Id. (citing Mitchell 4 v. Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir. 1988)). Here, 5 “[b]ecause California has not waived its Eleventh Amendment immunity,” SDSU is 6 immune from suit; accordingly, to the extent Plaintiff seeks to bring federal claims against 7 SDSU, they are frivolous and must be dismissed. Id. (citing Atascadero State Hospital, [8] 473 U.S. at 241 ; Mitchell, 861 F.2d at 201 ; Shaw, 788 F.2d at 603–04; Neitzke v. Williams, [9] 490 U.S. 319, 325 (1989)). 10 As to the Individual Defendants, “[t]he Eleventh Amendment bars claims for 11 damages against a state official acting in his or her official capacity.” Mitchell v. 12 Washington, 818 F.3d 436, 442 (9th Cir. 2016) (citing Pena v. Gardner, 976 F.2d 469 , 472 13 (9th Cir. 1992) (per curiam)). “Section 1983 claims against government officials in their 14 official capacities are really suits against the governmental employer because the employer 15 must pay any damages awarded.” Butler v. Elle, 281 F.3d 1014 , 1023 n.8 (9th Cir. 2002) 16 (citing Kentucky v. Graham, 473 U.S. 159 , 165–66 (1985)). Accordingly, to the extent 17 Plaintiff attempts to bring federal claims against the Individual Defendants seeking 18 monetary relief, he again fails to state a claim. 19 2. Claim 1: Declaratory Judgment and Injunction 20 Plaintiff’s first claim is for “declaratory judgment and injunction (under the 21 Declaratory Judgments Act and Civil Rights Act).” See Compl. at 2. However, both 22 declaratory relief and injunctive relief are remedies rather than standalone claims. See 23 Kimball v. Flagstar Bank F.S.B., 881 F. Supp. 2d 1209 , 1219–20 (S.D. Cal. 2012) 24 (dismissing with prejudice claim for declaratory relief because “[d]eclaratory relief is not 25 an independent cause of action, but instead a form of equitable relief”) (citation omitted); 26 Jones v. ABN AMRO Mortg. Grp., Inc., 551 F. Supp. 2d 400, 406 (E.D. Pa. 2008) 27 (similar), aff’d, 606 F.3d 119 (3d Cir. 2010); Mehta v. Wells Fargo Bank, N.A., 737 F. 28 Supp. 2d 1185, 1205 (S.D. Cal. 2010) (“Injunctive relief, like damages, is 1 a remedy requested by the parties, not a separate cause of action.’” (quoting Cox Commc’n 2 PCS, L.P. v. City of San Marcos, 204 F. Supp. 2d 1272, 1283 (S.D. Cal. 2002)). This alone 3 merits dismissal of Plaintiff’s first claim. 4 Even construing Plaintiff’s first claim liberally, however, as attempting to bring a 5 claim alleging that Defendants’ Covid-19 policy violates various rights protected by the 6 U.S. Constitution, see Compl. ¶¶ 20–23, the Court finds that Plaintiff fails to state a claim. 7 The crux of Plaintiff’s claim is that SDSU’s Covid-19 policy absolutely bars Plaintiff and 8 others from attending SDSU absent proof of vaccination. Id. ¶¶ 6–7. However, this 9 fundamental premise is false. Given that Plaintiff submits as an exhibit to his Complaint a 10 screenshot of an announcement on SDSU’s Student Health Services website declaring 11 “CSU to Require COVID-19 Vaccine for Fall 2021,” see Compl. Ex. A, and that said policy 12 forms the basis of Plaintiff’s claim, see id. ¶¶ 3–9, the Court considers the policy to be 13 incorporated by reference. The California State University COVID-19 Vaccination 14 Interim Policy (the “Policy”) clearly provides, however, that “[a] Student or Employee may 15 be excused from the vaccine requirement in this policy . . . due to a medical (including 16 mental health) condition for which an Approved Vaccine presents a significant risk of a 17 serious adverse reaction.” See Policy at II.F, available at 18 https://calstate.policystat.com/policy/9779821/latest/?mkt_tok=MTI1LUJNUC0yMDMA 19 AAF-mKw0tIdFW_JykR8n7y5PLI7vXFeobL5FS_HfBYDXuy-QOYoZ4F9iB5DOadf1 20 Ds1sFAZ6NrvIYwhQLaiSeedb9dHHDXQeGxHid5pouE9EtJP1pQ. Because the Policy 21 does have exemptions potentially applicable to Plaintiff, Plaintiff fails to state a claim on 22 the basis that he is necessarily harmed because he will not provide proof of vaccination. 23 Plaintiff’s claim also hinges on Plaintiff’s assertion that the Policy is illegal and 24 conflicts with state law, namely AB-86. Compl. ¶¶ 11–16. Again, however, this is untrue. 25 Once more, Plaintiff quotes from AB-86 and provides a citation to the bill, so the Court 26 considers AB-86 incorporated by reference into the Complaint. By its plain language, AB27 86, which added Article 8 to Chapter 1 of Part 19 of Division 1 of Title 1 of the California 28 Education Code (titled “COVID-19 Reporting and Public Health Requirements”), applies 1 to public and private schools “maintaining kindergarten or any of grades 1 to 12, inclusive.” 2 See Cal. Educ. Code § 32090 (a)(1). Thus, on its face, AB-86 does not apply to 3 postsecondary institutions like SDSU. See, e.g., Karasek v. Regents of the Univ. of Cal., 4 No. 15-CV-03717-WHO, 2015 WL 8527338 , at *18–19 (N.D. Cal. Dec. 11, 2015) 5 (rejecting argument that provision applied to postsecondary institution when definition of 6 included institutions included “public or private preschool[s], elementary, or secondary 7 school[s] or institution[s]”). While Plaintiff cites to Brown v. Li for the proposition that 8 “laws protecting students in elementary schools apply to state colleges as well,” Compl. ¶ 9 14 (citing 308 F.3d 939 , 949 (9th Cir. 2002)), Brown is inapposite, as here, Plaintiff raises 10 a straightforward issue of statutory construction, while Brown dealt with an issue of first 11 impression concerning First Amendment jurisprudence. Even assuming AB-86 applied to 12 SDSU, the fact that “section [32092] shall not be construed as inferring that vaccination of 13 school staff or pupils is a prerequisite for providing in-person instruction” is not a bar, as 14 Plaintiff claims, to the implementation of such prerequisites. Cal. Educ. Code § 32092 (d); 15 Compl. ¶¶ 11–12. Finally, the Policy, on its face, indicates that, “[i]n the event that a 16 federal, state, or local governing public health agency imposes a requirement that 17 restrictively conflicts with this policy or a campus’s implementation of this policy, the 18 applicable public health mandate shall govern and be implemented.” See Policy at IV.F. 19 Accordingly, to the extent Plaintiff contends that the Policy is illegal due to its alleged 20 conflict with AB-86, Plaintiff’s claim lacks merit for several independently sufficient 21 reasons. 22 In short, the Court finds that Plaintiff fails to state a plausible claim for declaratory 23 and injunctive relief on multiple grounds. 24 3. Claim 4: Retaliation 25 “Title 42 U.S.C. § 1983 ‘authorizes a remedy against state actors for constitutional 26 violations.’” Seater, 48 F.3d 1228 (citing Cerrato v. S.F. Cmty. Coll. Dist., 26 F.3d 968 , 27 971 n.5 (9th Cir. 1994)). “To state a First Amendment retaliation claim, a plaintiff must 28 plausibly allege ‘that (1) he was engaged in a constitutionally protected activity, (2) the 1 defendant’s actions would chill a person of ordinary firmness from continuing to engage 2 in the protected activity and (3) the protected activity was a substantial or motivating factor 3 in the defendant’s conduct.’” Capp v. Cty. of San Diego, 940 F.3d 1046, 1053 (9th Cir. 4 2019) (quoting O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016)). 5 Plaintiff essentially claims that, in retaliation for his complaining to SDSU about a 6 teacher’s fraudulent representations about his course’s scope and the delay his late 7 withdrawal from the class caused in his ability to pursue further classes, SDSU “started a 8 war against plaintiff, a deliberate and malicious vendetta to keep plaintiff out of the college 9 to punish him,” by taking various actions to refuse him a 2020 internship, barring his access 10 to his university e-mail account, fraudulently claiming that Plaintiff enrolled in a spring 11 2021 class that he failed to pay for to put a “hold” on Plaintiff’s account, refusing to let 12 Plaintiff drop a spring 2020 chemistry class in May 2021, and refusing Plaintiff access to 13 his records. Compl. ¶¶ 76–79, 62. Plaintiff appears to seek only monetary damages for 14 this claim. See id. ¶ 81. 15 As to the allegedly retaliatory acts, the vast majority are not attributed to particular 16 individuals and instead are attributed to “SDSU” as an entity. See id. ¶¶ 62(a)–(d), (f)–(h), 17 (l). For the reasons provided above, however, SDSU is immune from suit, and accordingly 18 Plaintiff fails to state a retaliation claim against SDSU. See supra Section III.A.1. 19 The only conduct attributed to the named Individual Defendants is as follows: 20 Catano created a fake “hold” on Plaintiff’s account by “adjusting” his record to show that 21 he registered for a spring 2021 class in which he did not enroll, Compl. ¶ 62(e); Catano 22 refused Plaintiff’s August 2021 request for access to his full record for the past three years, 23 id. ¶ 62(i); following Catano’s refusal, de la Torre refused to answer Plaintiff’s demand for 24 his records and an explanation of Catano’s alleged punishment, id. ¶ 62(j); and Ruiz “was 25 also sent [Plaintiff]’s request for his records and . . . had the power to provide the records, 26 but she refused,” id. ¶ 62(k). Plaintiff also appears to argue that he complained about the 27 “hold” issue to de la Torre through her executive secretary on August 4, 2021, see id. ¶ 35, 28 and to Castro on August 13, 2021, see id. ¶ 37, but that both failed to respond. 1 To the extent Plaintiff seeks to assert his retaliation claim against the Individual 2 Defendants in their official capacities, for the reasons provided above, see supra Section 3 III.A.1, they are immune under the Eleventh Amendment, and accordingly Plaintiff fails 4 to state a retaliation claim as to them. The Eleventh Amendment “does not, however, bar 5 claims for damages against state officials in their personal capacities.” Mitchell, 818 F.3d 6 at 442 (citing Pena, 976 F.2d at 472 ) (emphasis in original). “Clearly, under § 1983, a 7 plaintiff may sue a state officer in his individual capacity for alleged wrongs committed by 8 the officer in his official capacity.” Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1990). 9 However, “[t]o state a cause of action against a defendant in his individual capacity, the 10 plaintiff ‘must allege that the defendant knew of or participated in activities connected to 11 the alleged § 1983 violations.’” Ortiz v. Alvarez, 341 F. Supp. 3d 1087, 1110 (E.D. Cal. 12 2018) (quoting Ortez v. Wash. Cty., 88 F.3d 804 , 809 (9th Cir. 1996)). In other words, 13 “[l]iability under section 1983 arises only upon a showing of personal participation by the 14 defendant. A supervisor is only liable for constitutional violations of his subordinates if 15 the supervisor participated in or directed the violations, or knew of the violations and failed 16 to act to prevent them. There is no respondeat superior liability under section 1983.” 17 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citing Fayle v. Stapley, 607 F.2d 858 , 18 862 (9th Cir. 1979); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675 , 19 680–81 (9th Cir. 1984)). 20 Here, Plaintiff fails to state a plausible retaliation claim against the Individual 21 Defendants. Although, construed liberally, Plaintiff alleges that he engaged in protected 22 activity by complaining about his teachers’ supposed fraud (although Plaintiff utterly fails 23 to allege to whom he complained, in what form, when, or any other supporting facts), see, 24 e.g., Compl. ¶ 76, Plaintiff does not adequately and plausibly allege the second two 25 elements of his claim. As to de la Torre and Castro, Plaintiff fails to allege that they “knew 26 of the alleged retaliation before it happened” such that they could have participated in or 27 directed the allegedly retaliatory acts or failed to prevent them. Spittal v. Houseman, 224 28 F. App’x 725 (9th Cir. 2007) (citation omitted). As to Ruiz, Plaintiff alleges only that she 1 failed to provide him with his academic records when requested. See Compl. ¶ 62(k). 2 Plaintiff has failed to allege facts that, taken as true, would establish that a person of 3 ordinary firmness would be deterred from engaging in the at-issue constitutionally 4 protected conduct because of this single incident or would show that Plaintiff’s exercise of 5 his free speech rights was the “but for” cause of Ruiz’s actions. And while Plaintiff alleges 6 somewhat more retaliatory conduct by Catano, see id. ¶¶ 62(e), (i), again, the allegations 7 simply are inadequate to plausibly allege the second and third elements of a retaliation 8 claim against her. Accordingly, the Court finds that Plaintiff fails to plead a plausible claim 9 for retaliation against any of Defendants. 10 4. Claim 5: Equal Protection 11 Finally, Plaintiff alleges that Defendants violated the Equal Protection Clause of the 12 Fourteenth Amendment of the U.S. Constitution. See Compl. ¶¶ 82–100. Again, “[s]ection 13 1983 authorizes a remedy against state actors for constitutional violations, including 14 violations of the Equal Protection Clause.” Cerrato, 26 F.3d at 972 (citing 42 U.S.C. 15 § 1983). The Equal Protection Clause provides: “No state shall . . . deny to any person 16 within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. 17 Plaintiff explicitly alleges that his claim is a “class-of-one” claim. See Compl. ¶ 93; 18 Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1021 (9th Cir. 2011) (“The Supreme Court 19 has recognized that ‘an equal protection claim can in some circumstances be sustained even 20 if the plaintiff has not alleged class-based discrimination, but instead claims that she has 21 been irrationally singled out as a so-called “class of one.”’”) (quoting Engquist v. Or. Dep’t 22 of Agric., 553 U.S. 591, 601 (2008)). “An equal protection claim based on a ‘class of one,’ 23 which does not depend on a suspect classification such as race or gender, requires a plaintiff 24 to allege that he has been (1) ‘intentionally treated differently from others similarly 25 situated’ and (2) ‘there is no rational basis for the difference in treatment.’” Williams v. 26 Cty. of Alameda, 26 F. Supp. 3d 925, 941 (N.D. Cal. 2014) (citing Village of Willowbrook 27 v. Olech, 528 U.S. 562, 564 (2000); Gerhart, 637 F.3d at 1022 (9th Cir. 2011)). 28 / / / 1 For the reasons provided above, to the extent Plaintiff brings this claim (1) against 2 SDSU and (2) against the Individual Defendants in their official capacities for monetary 3 damages, it fails because they are entitled to Eleventh Amendment immunity. See supra 4 Section III.A.1. Further, Plaintiff fails to state a claim as to either Castro or Ruiz, as 5 Plaintiff alleges no facts concerning their participation in or knowledge of the allegedly 6 violative acts. See generally Compl.; see also Ortiz, 341 F. Supp. 3d at 1110 (E.D. Cal. 7 2018). 8 That leaves only Plaintiff’s claims against de la Torre and Catano. Plaintiff claims 9 that, in the spring of 2020, de la Torre allowed all students to withdraw from their classes 10 without adverse grades and with full refunds, despite the deadline for dropping classes 11 having passed, because of the Covid-19 pandemic. Compl. ¶ 85. Plaintiff wanted to stay 12 in his 2020 chemistry class because he was doing research to find a cure for Covid-19, so 13 he was granted an “incomplete” grade, which he needed to complete by May 2021. Id. 14 ¶ 86. Plaintiff applied for special lab access to complete the class, but after his 15 “incomplete” grade had already been entered, he was informed that his request was denied 16 because he was not a Ph.D. candidate. Id. ¶¶ 86–87. The bar on lab access was not lifted 17 until April 2021, at which point “it was impossible to do 6 months of lab work in the 18 remaining month.” Id. ¶ 88. At that point, Plaintiff petitioned to drop the chemistry class. 19 Id. Defendants have not informed Plaintiff that his request was denied, but Plaintiff 20 assumes that to be the case and that he was given an “F” in the class because he has received 21 no refund and because Plaintiff’s chemistry teacher informed him that no one has contacted 22 her to ask for a grade. Id. ¶¶ 89–91. Plaintiff alleges that Catano orchestrated this outcome 23 to punish him for his complaint about faculty fraud in 2020. Id. ¶ 89. 24 Although Plaintiff alleges that he “was in the exact same legal position as all other 25 SDSU students faced with impossibility of performance due to force majeure or Act of 26 God,” id. ¶ 93, the facts alleged elsewhere in the Complaint establish otherwise. The other, 27 allegedly similarly situated SDSU students dropped their classes a full year earlier, in the 28 spring of 2020, when explicitly granted an opportunity to do so and when “the COVID 1 pandemic closed entirely all in-person classes.” Id. ¶ 85. Plaintiff, on the other hand, did 2 not seek to drop his class until May 2021, after he had already taken an “incomplete” grade 3 in the class and at a time when Covid-19 restrictions were being lifted. See id. ¶¶ 86, 88. 4 Accordingly, the facts alleged in the Complaint tend to show that Plaintiff, in fact, was not 5 similarly situated to the students who were permitted to withdraw late from their classes. 6 Although “impossibility” of some variety may have been the reason for the requested 7 withdrawals both in the spring of 2020 and in May 2021, the reasons for that 8 “impossibility” were ultimately different. And, because Plaintiff was not similarly situated 9 to the students who took advantage of an express opportunity to withdraw at the height of 10 the Covid-19 pandemic, the facts alleged tend to suggest a rational basis for the allegedly 11 differential treatment. Thus, Plaintiff also fails to plausibly allege the elements of an equal 12 protection claim against any Defendant. 13 B. State Law Claims 14 “In any civil action of which the district courts have original jurisdiction, the district 15 courts shall have supplemental jurisdiction over all other claims that are so related to 16 claims in the action within such original jurisdiction that they form part of the same case 17 or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367 (a). 18 However, “once judicial power exists under § 1367(a), retention of supplemental 19 jurisdiction over state law claims under 1367(c) is discretionary.” Acri v. Varian Assoc., 20 Inc., 114 F.3d 999, 1000 (9th Cir. 1997). 21 Plaintiff also seeks to bring various California state law claims against 22 Defendants. See generally Compl. Because Plaintiff has failed to allege adequately any 23 violation of federal law, however, the Court exercises its discretion to dismiss his pendent 24 state law claims without prejudice. 28 U.S.C. § 1367 (c)(3) (“The district court may decline 25 to exercise supplemental jurisdiction over a claim under subsection (a) if . . . [it] has 26 dismissed all claims over which it has original jurisdiction.”); United Mine Workers of Am. 27 v. Gibbs, 383 U.S. 715, 726 (1966) (“[I]f the federal claims are dismissed before trial, . . . 28 the state claims should be dismissed as well.”); Acri, 114 F.3d at 1000 . 1 C. Leave to Amend 2 For the above-mentioned reasons, the Court finds Plaintiff’s Complaint fails to state 3 any claim upon which relief can be granted and that the Complaint must be dismissed sua 4 sponte and in its entirety pursuant to 28 U.S.C. § 1915A(b)(1). Because Plaintiff is 5 proceeding pro se, the Court, having now provided him with “notice of the deficiencies in 6 his complaint,” will also grant him an opportunity to fix them. See Akhtar v. Mesa, 698 7 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 8 1992)). 9 MOTION FOR TEMPORARY RESTRAINING ORDER 10 Federal Rule of Civil Procedure 65(b) governs the issuance of a temporary 11 restraining order (“TRO”). The standard for a TRO is identical to the standard for a 12 preliminary injunction. Frontline Med. Assocs., Inc. v. Coventry Healthcare Worker’s 13 Comp., Inc., 620 F. Supp. 2d 1109, 1110 (C.D. Cal. 2009). A plaintiff seeking preliminary 14 relief must establish “[1] that he is likely to succeed on the merits, [2] that he is likely to 15 suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities 16 tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. 17 Def. Council, Inc., 555 U.S. 7, 20 (2008). Injunctive relief is “an extraordinary remedy 18 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief” 19 and is “never awarded as a matter of right.” Id. at 22, 24 . “Because it is a threshold inquiry, 20 when a plaintiff has failed to show the likelihood of success on the merits, [the court] need 21 not consider the remaining three [Winter elements].” Garcia v. Google, Inc., 786 F.3d 733 , 22 740 (9th Cir. 2015) (en banc) (citing Ass’n des Eleveurs de Canards et d’Oies du Quebec 23 v. Harris, 729 F.3d 937, 944 (9th Cir. 2013) (internal quotation marks omitted). 24 When a plaintiff has not provided notice of his application to the defendant, Federal 25 Rule of Civil Procedure 65(b)(1) imposes specific requirements prior to the issuance of a 26 TRO. Namely: 27 The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: [28] 1 (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will [2] result to the movant before the adverse party can be heard in 3 opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be [4] required. [5] 6 Fed. R. Civ. P. 65(b)(1). “The stringent restrictions imposed . . . by Rule 65[ ] on the 7 availability of ex parte temporary restraining orders reflect the fact that our entire 8 jurisprudence runs counter to the notion of court action taken before reasonable notice and 9 an opportunity to be heard has been granted both sides of a dispute.” Granny Goose Foods, 10 Inc. v. Bhd. of Teamsters, 415 U.S. 423 , 438–39 (1974) (footnote omitted). Accordingly, 11 “courts have recognized very few circumstances justifying the issuance of an ex parte 12 TRO.” Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006). “For 13 example, an ex parte TRO may be appropriate ‘where notice to the adverse party is 14 impossible either because the identity of the adverse party is unknown or because a known 15 party cannot be located in time for a hearing.’” Id. (quoting Am. Can Co. v. Mansukhani, [16] 742 F.2d 314, 322 (7th Cir. 1984)). Alternatively, “[i]n cases where notice could have 17 been given to the adverse party, courts have recognized a very narrow band of cases in 18 which ex parte orders are proper because notice to the defendant would render fruitless the 19 further prosecution of the action.’” Id. (quoting Am. Can Co., 742 F.3d at 322). 20 Here, because Plaintiff’s Complaint has not survived screening, Plaintiff has failed 21 to establish a likelihood of success on the merits. See Keavney v. O’Brien, No. 22 3:20CV1443-MMA-MSB, 2020 WL 7318120 , at *5 (S.D. Cal. Dec. 11, 2020) (“[B]ecause 23 the Court found that Plaintiff’s Complaint failed to state a claim upon which Section 1983 24 relief may be granted, he has failed to demonstrate for purposes of preliminary injunctive 25 relief a likelihood of success on the merits.”) (citing Thomas v. Chu, No. 3:20-cv-0024526 GPC-BGS, 2020 WL 5408944 , at *10 (S.D. Cal. Sept. 9, 2020)). Nor does it appear that 27 Plaintiff has complied with the stringent notice certification requirements of Federal Rule 28 / / / 1 Civil Procedure 65(b)(1) for issuance of an ex parte TRO. Accordingly, the Court 2 || DENIES WITHOUT PREJUDICE Plaintiff's TRO Motion. 3 CONCLUSION 4 In light of the foregoing, the Court GRANTS Plaintiff's IFP Motion (ECF No. 2), 5 || DISMISSES Plaintiff's Complaint in its entirety pursuant to 28 U.S.C. § 1915 (e)(2) 6 || WITH LEAVE TO AMEND (ECF No. 1), and DENIES WITHOUT PREJUDICE 7 || Plaintiff's TRO Motion (ECF No. 3). The Court grants Plaintiff forty-five (45) days from 8 ||the date on which this Order is electronically docketed in which to file an amended 9 || complaint curing the deficiencies of pleading noted herein. Should Plaintiff fail to file an 10 |;}amended complaint in accordance with this Order, the Court will enter a final order 11 |} dismissing this civil action without prejudice based on Plaintiffs failure to prosecute in 12 || compliance with a court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 13 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his 14 complaint, a district court may convert the dismissal of the complaint into dismissal of the 15 || entire action.”). 16 IT IS SO ORDERED. 17 ||Dated: August 23, 2021 jae L. Lo memeaite18 on. Janis L. Sammartino 19 United States District Judge