Jones v. Madden

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 LARRY JONES, Jr., Case No.: 22-CV-1814 TWR (KSC) CDCR #BI-0619 [12] ORDER: [13] Plaintiff, (1) SCREENING COMPLAINT [14] vs. PURSUANT TO 28 U.S.C. § 1915A; [15] (2) DISMISSING DEFENDANTS [16] RAYMOND MADDEN, Warden; MADDEN, ALLISON, AND HAAS 17 KATHLEEN ALLISON, Secretary, FOR FAILING TO STATE A CLAIM; CDCR; KRISTIN HAAS, Senior AND [18] Psychologist, Richard J. Donovan 19 Correctional Facility; J. SALAZAR, (3) DIRECTING CLERK TO ISSUE Correctional Sergeant; C. TAYLOR, SUMMONS AND WAIVER OF [20] Correctional Officer; J. LUGO, SERVICE FORMS PURSUANT TO 21 Correctional Officer; and Fed. R. Civ. P. 4(b), (d)(1) DOCTOR ENFIELD, Clinician, Doctor of [22] Mental Health, 23 Defendants. [24] 25 Presently before the Court is Plaintiff Larry Jones, Jr.’s Complaint. (See ECF No. 26 1, “Compl.”) Plaintiff’s Complaint, filed pursuant to 42 U.S.C. § 1983 , alleges that 27 Defendants Raymond Madden, Kathleen Allison, Kristin Haas, J. Salazar, C. Taylor, J. 28 Lugo, and Doctor Enfield violated Plaintiff’s rights under the Eighth Amendment and 1 Fourteenth Amendment. (See generally id.) Because Plaintiff is a prisoner seeking redress 2 from officers or employees of a government entity, an initial review of his1 Complaint is 3 required by 28 U.S.C. § 1915A. For the reasons set forth below, the Court DISMISSES 4 IN PART Plaintiff’s Complaint WITHOUT PREJUDICE. 5 BACKGROUND 6 I. Procedural History 7 Plaintiff is an inmate currently housed at California State Prison, Los Angeles 8 County (“CSP-LAC”). (See generally Compl.) Plaintiff, proceeding pro se, initiated this 9 action on November 17, 2022, (see generally id.), but did not initially pay the $402 civil 10 filing fee required by 28 U.S.C. § 1914 (a) or file a motion to proceed in forma pauperis 11 (“IFP”) pursuant to 28 U.S.C. § 1915 (a). (See generally Docket.) Accordingly, the Court 12 dismissed the action on November 28, 2022, but granted Plaintiff leave to pay the civil 13 filing fee or move to proceed IFP. (See ECF No. 5.) On December 14, 2022, Plaintiff 14 timely paid the $402 initial civil filing fee, and the Court reopened the matter. (See ECF 15 No. 6.) 16 Plaintiffs’ Complaint names seven Defendants: (1) Raymond Madden, Warden at 17 the Richard J. Donovan Correctional Facility (“RJD”); (2) Kathleen Allison, Secretary of 18 California Department of Corrections and Rehabilitation (“CDCR”); (3) Kristin Haas, 19 Senior Psychologist at RJD; (4) J. Salazar, Correctional Sergeant at RJD; (5) C. Taylor, 20 Correctional Officer; (6) J. Lugo, Correctional Officer; and (7) Dr. Enfield, Clinician and 21 Doctor. (See Compl. at 2–3.)2 Plaintiff brings claims under the Eighth and Fourteenth 22 Amendments for cruel and unusual punishment, failure to protect, and failure to provide a 23 licensed doctor. (Id. at 4, 13.) [25] 1 In his Complaint, Plaintiff—who identifies as non-binary and transgender—uses he/him pronouns to 26 refer to himself. The Court uses the same pronouns in this Order. 27 2 To avoid ambiguity, citations to the Complaint refer to the CM/ECF pagination electronically stamped at the top of each page. [28] 1 II. Factual Allegations 2 Plaintiff defines himself as a “mentally ill, disabled, non-binary transgender” 3 individual. (Compl. at 4.) Although Plaintiff is currently housed at CSP-LAC, from April 4 to June of 2022, Plaintiff was housed at RJD. (Id. at 1, 4.) While at RJD, Plaintiff claims 5 he requested a “transgender access card” from correctional officers on several occasions 6 pursuant to the Transgender Dignity Act.3 (See id. at 4 .) The officers allegedly refused 7 and responded by labeling Plaintiff a “snitch, faggot, and sex offender.” (See id. (internal 8 quotation marks omitted).) Plaintiff claims that these officers “spread[] rumors Plaintiff 9 was a Rap[i]st” and told inmates who were gang members that Plaintiff’s criminal 10 conviction was for a “sexual offense” that involved a minor, which caused gang members 11 to threaten, sexually harass, and assault Plaintiff. (Id. at 4–5.) Plaintiff was moved to the 12 sensitive needs yard (“SNY”) because his “gender identity,” “‘R’ suffix for indecent 13 exposure,” and “past gang history” made him “vulnerable to sexual harassment, extortion, 14 rape and physical assaults” by gang members. (Id. at 4.) 15 On July 24, 2022, Plaintiff claims he “witnessed the assault of numerous mentally 16 ill prisoners” by Defendant J. Salazar, then a Correctional Officer, which “lasted over 30 17 minutes.” (Id.) Plaintiff alleges Salazar “brutally beat and sodomized [an inmate] with a 18 broom in the presence of Correctional Officer(s) C. Taylor and J. Lugo who[] failed to 19 intervene, and or report the incident(s).” (Id.) A nurse purportedly witnessed this event 20 and reported it to the correctional officers’ supervisors. (See id. at 5–6.) Defendant Salazar 21 was allegedly “caught . . . in the act” and “handcuffed and escorted out of the building.” 22 (Id. at 6.) Plaintiff “yelled outside of his cell door that he would write everything up and 23 that he’d seen everything.” (Id.) 24 Later that evening, Plaintiff alleges he was “violently dragged out of his cell and 25 attacked” by Defendants Taylor and Lugo. (Id.) They purportedly strapped Plaintiff to a [28] 1 gurney and “started pressing down on his chest with all their body weight.” (Id.) Plaintiff 2 “began screaming for them to stop” but they refused and “continued while making threats 3 and calling Plaintiff a snitch.” (Id.) They then asked Plaintiff where his phone recording 4 of the “patient being sodomized” was located. (Id.) 5 The next day Plaintiff was charged with “possession of a cellular phone,” which he 6 had used to “capture[] the sexual assault.” (Id. at 7.) Plaintiff claims he was “coerced into 7 pleading guilty and threatened with death if he did not comply.” (Id.) That same day, 8 Sergeant Parra4 interviewed Plaintiff about his safety concerns regarding Defendants 9 Salazar, Taylor, and Lugo. (Id. at 6.) Parra allegedly stopped recording the interview 10 whenever Plaintiff mentioned Defendants’ names and told Plaintiff that he would not be 11 placed in protective isolation unless he “mention[ed] other inmates[’] names.” (Id. at 7.) 12 “Plaintiff fearfully gave [Parra] random names” which Plaintiff claims placed him in 13 greater danger of harm from gang members and officers. (Id.) Plaintiff was later placed 14 in Administrative Segregation (“ad-seg”) where he was denied “access to grievances and 15 writing material.” (Id. at 7–8.) 16 On August 1, 2022, Plaintiff claims he was assaulted by correctional officers for 17 filing a grievance and then charged with assaulting an officer. (See id. at 8 .) Plaintiff was 18 then “interviewed by medical personnel,” at which point he notified his mental health 19 clinician, Defendant Dr. Enfield, that some of his injuries were from a previous assault by 20 a different correctional officer. (Id.) According to Plaintiff, Dr. Enfield refused to 21 document these claims in Plaintiff’s mental health file. (See id.) 22 Plaintiff was then “placed in a crisis bed,” at which time he learned that Defendant 23 Salazar had been promoted to Sergeant. (Id.) At this time Salazar allegedly began 24 “continuously threaten[ing] Plaintiff to ‘shut up’ or he’d rape him and slit his throat.” (Id.) 25 Plaintiff claims Salazar also told inmates who were gang members that Plaintiff was a [28] 1 “child molester” and a “snitch,” which caused these inmates to subject Plaintiff to “threats 2 and extortion,” including “tap[ping] on [Plaintiff’s] door window while he sat naked in a 3 smock and request[ing] he’d show them his rectum.” (Id. at 8–9.) 4 On August 8, 2022, Plaintiff was placed back in ad-seg. (See id. at 9 .) While there, 5 he claims he learned that Dr. Enfield was an “unlicensed mental health clini[c]ian 6 fraudulently posing as a [doctor].” (Id.; see also id. at 13 (“Defendant Enfield was in 7 actuality an Intern posing as a Doctor . . . .”).) Plaintiff alleges Dr. Enfield “fabricated 8 Plaintiff’s diagnosis and changed it to ‘malingering,’” “attempted to coerce Plaintiff into 9 going back to suicide watch,” and refused to sign a release allowing the presence of 10 attorneys at Plaintiff’s treatments. (Id. at 9–10.) He further claims that Dr. Enfield 11 “concealed and aided” Defendant Salazar and other officers and “refused Plaintiff adequate 12 [mental health] treatment.” (Id. at 13.) As for Defendant Haas, the Senior Psychologist, 13 Plaintiff claims she “refused to enforce the Health Care Department Operations Manual 14 and the California Code of Regulations mandates,” “supervise the ‘intern,’” or provide 15 Plaintiff with a “licensed physician” as required by statewide policies. (Id. at 13.) 16 Furthermore, Plaintiff alleges Defendants Allison, Madden, Lugo, and Taylor failed 17 to report the use of force to supervisors as required under California Code of Regulations 18 Title 15 Section 3268.1(a)(1), which “subjected Plaintiff to the threat of constant violence 19 [and] sexual harassment at the hands of their fellow employees.” (Id. at 11.) As evidence 20 of Warden Madden’s “deliberate[] indifferen[ce] to Plaintiff’s safety,” Plaintiff points to 21 Defendant Salazar’s promotion from Officer to Sergeant after Plaintiff “blew the whistle.” 22 (Id. at 12.) Finally, Plaintiff alleges Defendant Allison, the CDCR Secretary, was 23 “deliberately indifferent to Plaintiff[’s] safety” because she failed to issue an 24 “administrative executive directive” ordering RJD to enforce the zero tolerance policy for 25 security threat groups (“STG”s) under California Code of Regulations Title 15 Section 26 3023.1(a). (Id. at 10–11; see also id. at 5 (alleging Allison and Madden “refus[ed] to 27 enforce the CDCR zero tolerance of . . . gangs policy thereby causing Plaintiff to become 28 one of their many victims.”).) 1 As a result of Defendants’ actions, Plaintiff seeks injunctive and monetary relief. 2 First, Plaintiff seeks an injunction preventing his transfer to any level three or four prison 3 in which “STG gang members are operating or any CDCR facility and/or [RJD] until this 4 matter is tried on the merits.” (Id. at 18.) Second, Plaintiff seeks an injunction requiring 5 Defendants to provide the Court with notice and good cause before Plaintiff is transferred 6 to RJD or any level three or four prison. (Id.) Third, Plaintiff seeks an injunction 7 “preventing Defendants from denying Plaintiff immediate transfer to Coalinga State 8 Hospital to undergo mental health treatment.” (Id.) As for monetary relief, Plaintiff seeks 9 $50,000 in punitive damages from each Defendant and $100,000 in compensatory 10 damages. (Id.) Prior to bringing this action, Plaintiff allegedly exhausted all forms of 11 available relief from the proper administrative officials. (Id. at 17.) 12 LEGAL STANDARD 13 Under 28 U.S.C. § 1915A, district courts must conduct preliminary screenings of all 14 complaints filed by plaintiffs who are prisoners seeking “redress from a governmental 15 entity or officer or employee of a governmental entity.” See 28 U.S.C. § 1915A(a); see 16 also Chavez v. Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016). “‘On review, the court 17 shall . . . dismiss the complaint, or any portion of the complaint,’ if it ‘(1) is frivolous, 18 malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary 19 relief from a defendant who is immune from such relief.’” Olivas v. Nevada ex rel. Dep’t 20 of Corrs., 856 F.3d 1281, 1283 (9th Cir. 2017) (quoting 28 U.S.C. § 1915A(b)); see also 21 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to 22 § 1915A “incorporates the familiar standard applied in the context of failure to state a claim 23 under Federal Rule of Civil Procedure 12(b)(6)”). “The purpose of [screening] is ‘to ensure 24 that the targets of frivolous or malicious suits need not bear the expense of responding.’” 25 Nordstrom v. Ryan, 762 F.3d 903 , 907 n.1 (9th Cir. 2014) (citation omitted). 26 / / / 27 / / / 28 / / / 1 ANALYSIS 2 I. Eighth Amendment Claims 3 A. Claims Against Defendants Taylor and Lugo 4 Plaintiff’s Eighth Amendment claims against Officers Taylor and Lugo involve the 5 excessive use of force. (See generally Compl.) “[W]henever prison officials stand accused 6 of excessive physical force in violation of the [Eighth Amendment], the core judicial 7 inquiry is . . . whether force was applied in a good-faith effort to maintain or restore 8 discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 9 1, 6‒7 (1992). In analyzing an excessive force claim, courts consider the following factors: 10 the need for the application of force, the relationship between the need and the amount of 11 force used, the extent of the injury suffered, the threat reasonably perceived by the 12 responsible officials, and any efforts made to temper the severity of a forceful response. 13 See id. at 7. 14 Here, Plaintiff alleges that he was “violently dragged out of his cell and attacked” 15 by Defendants Taylor and Lugo. (Compl. at 6.) These Defendants purportedly strapped 16 Plaintiff to a gurney and “started pressing down on his chest with all their body weight.” 17 (Id.) Plaintiff “began screaming for them to stop” as his “chest [felt] like it [was] going to 18 break” but they refused and “continued while making threats and calling Plaintiff a snitch.” 19 (Id.) As currently pleaded and liberally construed, the factual allegations in Plaintiff’s 20 Complaint involve plausible Eighth Amendment excessive force claims against 21 Defendants Taylor and Lugo, which are “sufficient to meet the low threshold for 22 proceeding past the screening stage.” Wilhelm, 680 F.3d at 1123 ; Iqbal, 556 U.S. at 678; 23 28 U.S.C. § 1915A(b)(1). 24 B. Claim Against Defendant Salazar 25 Plaintiff’s Eighth Amendment claim against Sergeant Salazar involves a failure to 26 protect. (See generally Compl.) Accordingly, Plaintiff must “objectively show that he was 27 deprived of something sufficiently serious[] and make a subjective showing that the 28 deprivation occurred with deliberate indifference to the inmate’s health or safety.” Thomas 1 v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (internal quotations and citations omitted); 2 see also United States v. Williams, 842 F.3d 1143, 1153 (9th Cir. 2016) (stating the Eighth 3 Amendment “requires that prison officials ‘must take reasonable measures to guarantee the 4 safety of the inmates.’”). “[A] prison official can violate a prisoner’s Eighth Amendment 5 rights by failing to intervene” to protect their safety, Robins v. Meecham, 60 F.3d 1436 , 6 1442 (9th Cir. 1995), or by labeling prisoner a “snitch” in the presence of other inmates, 7 see Valandingham v. Bojorquez, 866 F.2d 1135, 1139 (9th Cir. 1989); see also McDaniels 8 v. United States, 2018 WL 7501292 , at *7 (C.D. Cal. Dec. 28, 2018) (“Spreading rumors 9 about the nature of an inmate’s conviction, or about conduct an inmate has engaged in 10 while in prison, can violate the Eighth Amendment by placing a prisoner at great risk of 11 assault.”). 12 Plaintiff alleges that Defendant Salazar “continuously threatened Plaintiff to ‘shut 13 up’ or he’d rape him and slit his throat.” (Compl. at 8.) Plaintiff also claims Salazar told 14 other inmates who were gang members that Plaintiff was a “child molester” and a “snitch” 15 which caused these inmates to subject Plaintiff to “threats and extortion.” (Id. at 8–9.) As 16 currently pleaded and liberally construed, the factual allegations in Plaintiff’s Complaint 17 involves a plausible Eighth Amendment failure to protect claim against Defendant Salazar, 18 which is “sufficient to meet the low threshold for proceeding past the screening stage.” 19 Wilhelm, 680 F.3d at 1123 ; Iqbal, 556 U.S. at 678; 28 U.S.C. § 1915A(b)(1). 20 C. Claim Against Defendant Enfield 21 Plaintiff’s Eighth Amendment claim against Dr. Enfield involves deliberate 22 indifference to a serious medical need. (See generally Compl.) The Eighth Amendment 23 requires that inmates have “ready access to adequate medical care.” Hoptowit v. Ray, 682 24 F.2d 1237 , 1253 (9th Cir. 1982). An individual violates the Eighth Amendment when they 25 show “deliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble, [26] 429 U.S. 97, 104 (1976). “A prison official acts with ‘deliberate indifference . . . only if 27 the [prison official] knows of and disregards an excessive risk to inmate health and safety.’” 28 Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Gibson v. Cnty. of 1 Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002), overruled on other grounds by Castro v. 2 Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016)). “Under this standard, the 3 prison official must not only ‘be aware of facts from which the inference could be drawn 4 that a substantial risk of serious harm exists,’ but that person ‘must also draw the 5 inference.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). 6 Plaintiff claims that he suffered from serious mental health issues, but that Defendant 7 Enfield told Plaintiff he was “fabricating” his diagnosis and changed it to “malingering.” 8 (Compl. at 9.) He further claims that Dr. Enfield refused to document Plaintiff’s claims, 9 “attempted to coerce Plaintiff into going back to suicide watch,” and “refused Plaintiff 10 adequate [mental health] treatment.” (Id. at 9, 13.) As currently pleaded and liberally 11 construed, the factual allegations in Plaintiff’s Complaint involve a plausible Eighth 12 Amendment deliberate indifference claim against Defendant Enfield, which is “sufficient 13 to meet the low threshold for proceeding past the screening stage.” Wilhelm, 680 F.3d at 14 1123; Iqbal, 556 U.S. at 678; 28 U.S.C. § 1915A(b)(1). 15 D. Claims Against Defendants Madden, Allison, and Haas 16 However, the Court finds that Plaintiff has not alleged facts sufficient to state Eighth 17 Amendment claims against Defendants Madden, Allison, and Haas. Plaintiff alleges 18 Defendants Madden and Allison “refus[ed] to enforce the CDCR zero tolerance of . . . 19 gangs policy,” (Compl. at 5; see also id. at 10–11), and failed to report the use of force to 20 supervisors as required by California’s Title 15, (id. at 11). According to Plaintiff, this 21 failure caused him to suffer “the threat of constant violence [and] sexual harassment at the 22 hands of their fellow employees.” (Id.) As to Defendant Haas, Plaintiff alleges that she 23 “refused to enforce the Health Care Department Operations Manual and the California 24 Code of Regulations mandates,” “supervise the ‘intern’ [Dr. Enfield],” or provide Plaintiff 25 with a licensed physician in violation of statewide medical policies. (Id. at 13.) 26 “To the extent that the violation of a state law amounts to the deprivation of a state27 created interest that reaches beyond that guaranteed by the federal Constitution, Section 28 1983 offers no redress.” Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001) (quoting Sweaney 1 v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997)). Accordingly, “[v]iolations of 2 state prison rules and regulations [typically] do not provide an independent cause of 3 action.” Calhoun v. Cruz, No. 2:20-CV-2209 DB P, 2021 WL 1338776 , at *4 (E.D. Cal. 4 Apr. 9, 2021) (citing Ove, 264 F.3d at 824 ; Patterson v. Harrington, No. 1:12-cv-0440 5 MJS, 2013 WL 3212413 , at *5 (E.D. Cal. June 24, 2013) (finding “no authority to support 6 . . . an implied private right of action under [California’s] Title 15” and explaining that 7 “[t]he existence of regulations governing the conduct of prison employees does not 8 necessarily entitle an inmate to sue civilly for their violation”)). Furthermore, “[a]n 9 allegation that a prison official inappropriately denied or failed to adequately respond to a 10 grievance, without more, does not state a claim under § 1983.” Evans v. Skolnik, 637 Fed. 11 App’x 285, 288 (9th Cir. 2015). 12 Moreover, supervisory liability is not an independent cause of action under § 1983. 13 See Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). A supervisor can only be liable 14 for the acts of their subordinates if they too were “personally involved in the constitutional 15 deprivation,” or if the plaintiff can prove “a sufficient causal connection exists between the 16 supervisor’s unlawful conduct and the constitutional violation.” Lolli v. County of Orange, [17] 351 F.3d 410, 418 (9th Cir. 2003); see also Hansen v. Black, 855 F.2d 642, 646 (9th Cir. 18 1989). A sufficient causal connection exists if, for example, the supervisor “knowingly 19 refused to terminate a series of acts by others which [defendant] reasonably knew or 20 reasonably should have known would cause others to inflict a constitutional injury,” 21 Dubner v. City & Cnty. of San Francisco, 266 F.3d 959 , 968 (9th Cir. 2001) (citations 22 omitted), or if the supervisor “acquiesce[d] in [a] constitutional deprivation” or engaged in 23 “conduct that showed a reckless or callous indifference to the rights of others,” Watkins v. 24 City of Oakland, Cal., 145 F.3d 1087, 1093 (9th Cir. 1998). 25 Plaintiff may not attempt to hold Defendants Madden, Allison, and Haas liable 26 without any factual allegations regarding their personal involvement in the constitutional 27 violations or the causal connection between their wrongful conduct and the violations. See 28 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“A plaintiff must allege facts, 1 not simply conclusions, that show an individual was personally involved in the deprivation 2 of his civil rights.”); Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). While Plaintiff 3 alleges that Madden, Allison, and Haas failed to implement CDCR and Correctional Health 4 Care policies, he does not allege that these Defendants in fact knew of unconstitutional 5 conduct and refused to act. Keates v. Koile, 883 F.3d 1228, 1243 (9th Cir. 2018) (“[A] 6 claim that a supervisory official knew of unconstitutional conditions and ‘culpable actions 7 of his subordinates’ but failed to act amounts to ‘acquiescence in the unconstitutional 8 conduct of his subordinates’ and is ‘sufficient to state a claim of supervisory liability.’” 9 (quoting Starr v. Baca, 652 F.3d at 1208 )). Without any specific allegation that these 10 Defendants knew of and deliberately disregarded a risk to Plaintiff, the Eighth Amendment 11 claims are insufficient. Accordingly, the Court DISMISSES the Eighth Amendment 12 claims against Defendants Madden, Allison, and Haas for failure to state a claim pursuant 13 to 28 U.S.C. § 1915A. 14 II. Fourteenth Amendment Claims 15 Plaintiff also brings Fourteenth Amendment equal protection claims against 16 Defendants Enfield and Haas. (See Compl. at 13–15.) According to Plaintiff, Enfield 17 “subjected Plaintiff to discrimination” by denying him adequate medical treatment and 18 Haas “deprived Plaintiff of Equal Protection of Laws” by refusing to enforce prison 19 healthcare policies, failing to supervise Enfield, and failing to provide Plaintiff with a 20 licensed physician. (Id. at 13.) At the end of his Complaint, Plaintiff also briefly states 21 that he “incorporates by refer[e]nce all claims herein that each named defendant violated 22 [Plaintiff’s] 8th and 14th Amendment right(s),” but he fails to explain how the other 23 Defendants violated the Equal Protection Clause of the Fourteenth Amendment. (Id. at 14 24 (emphasis added).) 25 The Equal Protection Clause of the Fourteenth Amendment requires persons who 26 are similarly situated to be treated alike. See City of Cleburne v. Cleburne Living Center, 27 Inc., 473 U.S. 432, 439 (1985); Boardman v. Inslee, 978 F.3d 1092, 1117 (9th Cir. 2020). 28 A plaintiff can state an equal protection claim by setting forth facts which plausibly allege 1 that a defendant intentionally discriminated against them based on their membership in a 2 protected class. See Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114 , 1123 3 (9th Cir. 2013); Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994) 4 (“Intentional discrimination means that a defendant acted at least in part because of a 5 plaintiff’s protected status.”). An individual may be a member of a protected class based 6 on their “race, alienage, national origin, or sex,” for example. See Fields v. Legacy Health 7 Sys., 413 F.3d 943 , 955 (9th Cir. 2005); see also Cleburne, 473 U.S. at 446 (recognizing 8 disability as a protected characteristic under the Equal Protection Clause). And, at least in 9 the Title VII context, the Supreme Court has interpreted sex to include gender identity. 10 Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1744 (2020) (“When an employer fires an 11 employee for being homosexual or transgender, it necessarily and intentionally 12 discriminates against that individual in part because of sex.”); accord Romer v. Evans, 517 13 U.S. 620 , 631–35 (1996) (recognizing sexual orientation as a protected characteristic under 14 the Equal Protection Clause). 15 Plaintiff asserts, in the context of his Eighth Amendment claim, that he is “mentally 16 ill, disabled, [and] non-binary transgender.” (Compl. at 4.) Under his Fourteenth 17 Amendment claim, however, Plaintiff does not allege membership in any protected class; 18 nor does he allege that Enfield, Haas, or any other Defendants intentionally discriminated 19 against him based on his membership in a protected class. Accordingly, the Court 20 DISMISSES the Fourteenth Amendment claims against all Defendants for failure to state 21 a claim pursuant to 28 U.S.C. § 1915A. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 CONCLUSION 2 For the reasons set forth above, the Court: 3 (1) DISMISSES Plaintiff’s Eighth Amendment claims against Defendants Madden, 4 Allison, and Haas WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915A; 5 (2) DISMISSES Plaintiff’s Fourteenth Amendment claims against all Defendants 6 WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915A; 7 (3) DIRECTS the Clerk of Court to terminate Defendants Madden, Allison, and 8 Haas from the Court’s docket; and 9 (4) DIRECTS the Clerk of the Court to issue a summons upon Defendants Salazar, 10 Taylor, Lugo, and Enfield pursuant to Fed. R. Civ. P. 4(b), and forward it to 11 Plaintiff together with certified copies of his Complaint (ECF No. 1) and blank 12 AO 399 Waiver of Service of Summons Forms so that he may notify Defendants 13 that an action has been commenced against them and request each Defendant 14 waive personal service pursuant to Fed. R. Civ. P. 4(d)(1). 15 It is further Ordered that: 16 (5) Within 90 days of this Order,5 Plaintiff must properly execute service upon each 17 Defendant either by filing with the Clerk of the Court an executed waiver on 18 behalf of each Defendant, or by filing proof of personal service of both the 19 Complaint and summons upon each Defendant pursuant to Fed. R. Civ. P. 4(l) 20 should that Defendant fail to sign and return his properly requested waiver. [22] 5 The Court has tolled Rule 4(m)’s service clock while it conducted its mandatory screening duties 23 pursuant to 28 U.S.C. § 1915A. See Butler v. Nat’l Cmty. Renaissance of California, 766 F.3d 1191 , 1204 n.8 (9th Cir. 2014) (noting that “[o]ther federal circuit courts of appeals have held that the [90]–day service [24] period is tolled until the court screens a plaintiff’s in forma pauperis complaint and authorizes service of 25 process”) (citing Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir. 2010); Urrutia v. Harrisburg Cnty. Police Dep’t, 91 F.3d 451, 459 (3d Cir. 1996)); see also Much v. Langston, No. CV 16-0863 VAP (SS), 2018 26 WL 5905827 , at *7 (C.D. Cal. Oct. 23, 2018) (“In cases where a court is required to screen a complaint before it may be served, it is generally accepted that the service deadline prescribed by Rule 4(m) does 27 not begin to run until the date the court authorizes service of the complaint.”), report and recommendation adopted, No. CV 16-0863 VAP (SS), 2018 WL 5906044 (C.D. Cal. Nov. 9, 2018). [28] 1 Should Plaintiff fail to properly serve the Defendants within 90 days, the Court 2 will order him to show cause why his case should not be dismissed without 3 prejudice pursuant to Fed. R. Civ. P. 4(m). 4 IT IS SO ORDERED. 5 ||Dated: June 5, 2023 6 “Ten (2 D (oe 7 Honorable Todd W. Robinson United States District Judge