1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEMARICE DEON TERRELL, Case No.: 25cv2342-RSH (BJW)

CDCR #BG-8647,

12

ORDER:

Plaintiff, 13 vs. (1) GRANTING MOTION TO 14 PROCEED IN FORMA PAUPERIS, and 15

ROBERTO A. ARIAS,

16 Defendant. (2) DISMISSING COMPLAINT WITH

LEAVE TO AMEND PURSUANT TO

17 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 18 19 Plaintiff Demarice Deon Terrell, a state prisoner proceeding pro se, has filed a civil 20 rights Complaint pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff has also filed a Motion 21 to proceed in forma pauperis (“IFP”). ECF No. 2. 22 I. Motion to Proceed IFP 23 All parties instituting any civil action, suit or proceeding in a district court of the 24 United States, except an application for writ of habeas corpus, must pay a filing fee of 25 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 26 although the administrative fee does not apply to persons granted leave to proceed IFP. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 28 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 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). Section 3 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified copy of 4 the trust fund account statement (or institutional equivalent) for . . . the 6-month period 5 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 6 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 7 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 8 for the past six months, or (b) the average monthly balance in the account for the past six 9 months, whichever is greater, unless the prisoner has insufficient assets. See 28 U.S.C. 10 § 1915(b)(1), (4); Bruce v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP 11 must pay any remaining balance in “increments” or “installments,” regardless of whether 12 their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1), (2); Bruce, 577 U.S. at 84. 13 Plaintiff’s prison certificate shows he had an average monthly balance of $18.79 and 14 average monthly deposits of $17.88 for the six months preceding the filing of this action, 15 and an available balance of $0.08. ECF No. 2 at 5-6. The Court GRANTS Plaintiff’s 16 motion to proceed IFP and assesses no initial partial filing fee because it appears Plaintiff 17 does not have the ability to pay. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event 18 shall a prisoner be prohibited from bringing a civil action or appealing a civil action or 19 criminal judgment for the reason that the prisoner has no assets and no means by which to 20 pay the initial partial filing fee”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) 21 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a 22 prisoner’s IFP case based solely on “failure to pay . . . due to the lack of funds available to 23 him when payment is ordered”). Plaintiff remains obligated to pay the entire $350 statutory 24 fee in full pursuant to the installment provisions of 28 U.S.C. § 1915(b)(1), (2). 25 II. Screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 26 A. Standard of Review 27 Because Plaintiff is a prisoner proceeding IFP, his Complaint requires a pre-Answer 28 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these statutes, the Court 1 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, that is frivolous, 2 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 3 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 4 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 5 U.S.C. § 1915A(b)). “The purpose of § 1915A is to ensure that the targets of frivolous or 6 malicious suits need not bear the expense of responding.” Nordstrom v. Ryan, 762 F.3d 7 903, 907 n.1 (9th Cir. 2014) (internal quotation marks and citation omitted). 8 “The standard for determining whether a plaintiff has failed to state a claim upon 9 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 10 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 11 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 12 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 13 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 14 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 15 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 16 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 17 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 18 acting under color of state law, violate federal constitutional or statutory rights.” Devereaux 19 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 20 substantive rights, but merely provides a method for vindicating federal rights elsewhere 21 conferred.” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (internal quotation marks and 22 citation omitted). 23 B. Allegations in the Complaint 24 Plaintiff alleges that he has provided Defendant Warden Arias with proof that the 25 commitment order under which he is confined is unsigned and therefore invalid under state 26 law. ECF No. 1 at 3-4. He attaches as exhibits to the Complaint a copy of his unsigned 27 commitment order and a copy of a different prisoner’s felony complaint signed by a 28 committing magistrate. ECF No. 1-2 at 8, 10-11. Plaintiff claims his rights to due process 1 and equal protection have been violated by Defendant Arias’s negligent disregard of his 2 request to look at those documents and investigate the issue, resulting in an illegal 3 incarceration amounting to kidnapping and false imprisonment. ECF No. 1 at 3-4. He seeks 4 an injunction ordering his return to state court for a valid commitment order, and a 5 declaratory judgment declaring his commitment invalid. Id. at 7. 6 C. Analysis 7 1. Due Process Claim 8 Plaintiff first alleges he has been denied his liberty without due process of law by 9 Defendant Arias’s failure to respond to his request to examine his unsigned commitment 10 order demonstrating his prison commitment is invalid under state law, resulting in an illegal 11 detention amounting to kidnapping and false imprisonment, and seeks to have his 12 incarceration declared illegal. ECF No. 1 at 3-4, 7. The Due Process Clause of the 13 Fourteenth Amendment prohibits states from “depriv[ing] any person of life, liberty, or 14 property, without due process of law.” U.S. Const. amend. XIV, § 1. Assuming Plaintiff 15 could establish that Warden Arias is depriving him of his federal due process rights by 16 failing to determine whether his incarceration is illegal under state law, he is unable to 17 bring such a claim under 42 U.S.C. § 1983. Claims related to the “circumstances” of a 18 prisoner’s confinement are brought in a civil rights action under 42 U.S.C. § 1983, while 19 constitutional challenges to the validity or duration of a prisoner’s confinement must be 20 raised in a petition for federal habeas corpus under 28 U.S.C. § 2254. Muhammad v. Close, 21 540 U.S. 749, 750 (2004) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)); see also 22 Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (en banc) (“The Court has long held 23 that habeas is the exclusive vehicle for claims brought by state prisoners that fall within 24 the core of habeas, and such claims may not be brought in a § 1983 action.” (citing 25 Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005))). A claim based on “harm caused by 26 actions whose unlawfulness would render a conviction or sentence invalid” is not 27 cognizable under § 1983 unless Plaintiff “prove[s] that the conviction or sentence has been 28 reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal 1 authorized to make such determination, or called into question by a federal court’s issuance 2 of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 486-87 3 (1994). Plaintiff may not pursue claims that he is unlawfully incarcerated in a civil rights 4 action pursuant to 42 U.S.C. § 1983 without first showing his incarceration has been 5 invalidated. Id.; see also Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir. 2003) (“Suits 6 challenging the validity of the prisoner’s continued incarceration lie within ‘the heart of 7 habeas corpus,’ whereas ‘a § 1983 action is a proper remedy for a state prisoner who is 8 making a constitutional challenge to the conditions of his prison life, but not to the fact or 9 length of his custody.’” (quoting Preiser, 411 U.S. at 498-99)). 10 Accordingly, Plaintiff’s Fourteenth Amendment due process claim is dismissed sua 11 sponte without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failing to 12 state a claim. Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. 13 2. Equal Protection Claim 14 Plaintiff also alleges he has been denied equal protection of the laws by the failure 15 of Defendant Arias to respond to his requests to compare his invalid unsigned commitment 16 order with the valid signed commitment of another prisoner and realize his commitment 17 order is invalid. ECF No. 1 at 4. To the extent success on this claim would also require the 18 invalidation of his incarceration, it too sounds in habeas and fails to state a § 1983 claim 19 for the reasons set forth above. In addition, in order to state an equal protection claim, 20 Plaintiff must set forth facts which plausibly allege intentional discrimination based on 21 membership in a protected class. Hartmann v. California Dep’t of Corr. & Rehab., 707 22 F.3d 1114, 1123 (9th Cir. 2013); Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 23 1994) (“Intentional discrimination means that a defendant acted at least in part because of 24 a plaintiff’s protected status.”); Fields v. Legacy Health Sys., 413 F.3d 943, 955 (9th Cir. 25 2005) (identifying “race, alienage, national origin” as examples of characteristics protected 26 by the Equal Protection Clause). There are no factual allegations in the Complaint which 27 plausibly allege Plaintiff was intentionally discriminated against because of a protected 28 status. See United States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 2011) (“[N]either 1 prisoners nor ‘persons convicted of crimes’ constitute a suspect class for equal protection 2 purposes.” (citing Glauner v. Miller, 184 F.3d 1053, 1054 (9th Cir. 1999))); Fields v. 3 Legacy Health Sys., 413 F.3d 943, 955 (9th Cir. 2005) (identifying “race, alienage, national 4 origin, [and] sex” as examples of characteristics protected by the Equal Protection Clause). 5 An equal protection claim can be brought under a “class of one” claim where a 6 plaintiff is treated differently than similarly situated individuals without a rational basis for 7 the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); 8 Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 602 (2008) (“[W]hen it appears that an 9 individual is being singled out by the government, the specter of arbitrary classification is 10 fairly raised, and the Equal Protection Clause requires a ‘rational basis for the difference 11 in treatment.’” (quoting Olech, 528 U.S. at 564)). There are no allegations in the Complaint 12 which plausibly suggest Plaintiff was intentionally treated differently or arbitrarily as a 13 result of animus against him. See Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th 14 Cir. 2008) (“[T]he plaintiff in a ‘class of one’ case does not allege that the defendants 15 discriminated against a group with whom she shares characteristics, but rather that the 16 defendants simply harbor animus against her in particular and therefore treated her 17 arbitrarily.”). 18 Plaintiff’s equal protection claim is dismissed sua sponte pursuant to 28 U.S.C. 19 §§ 1915(e)(2) & 1915A(b) for failing to state a claim. Watison, 668 F.3d at 1112; Wilhelm, 20 680 F.3d at 1121. 21 3. Negligence Claim 22 Finally, Plaintiff claims Defendant has negligently failed to determine that his 23 commitment order is invalid under state law. ECF No. 1 at 2-3. The Court may “decline to 24 exercise supplemental jurisdiction” over any supplemental state law claim if it “has 25 dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c); Sanford 26 v. Member Works, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (“[I]n the usual case in which 27 all federal-law claims are eliminated before trial, the balance of factors to be considered 28 under the pendent jurisdiction doctrine . . . will point toward declining to exercise 1 jurisdiction over the remaining state-law claims.” (internal quotation marks omitted)). 2 Because all federal claims have been dismissed from this action, the Court declines to 3 exercise supplemental jurisdiction over any state law negligence claim at this time. 4 D. Leave to Amend 5 Although it appears unlikely Plaintiff can cure the foregoing defects of his pleading, 6 in light of his pro se status, the Court grants leave to amend. See Rosati v. Igbinoso, 791 7 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint 8 without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless it is absolutely 9 clear that the deficiencies of the complaint could not be cured by amendment.” (internal 10 quotation marks omitted)). 11 III. Conclusion and Orders 12 Good cause appearing, the Court: 13 1. GRANTS Plaintiff’s Motion to Proceed IFP. ECF No. 2. 14 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 15 Plaintiff’s prison trust account the $350 filing fee by collecting monthly payments from 16 Plaintiff’s account in an amount equal to twenty percent (20%) of the preceding month’s 17 income and forwarding those payments to the Clerk of the Court each time the amount in 18 the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). 19 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 20 Macomber, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 21 942883, Sacramento, California 94283-0001. 22 4. DISMISSES all claims in the Complaint without prejudice and with leave to 23 amend pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). 24 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 25 which to file a First Amended Complaint which cures the deficiencies of pleading noted in 26 this Order. Plaintiff’s First Amended Complaint must be complete by itself without 27 reference to his original Complaint. Any claims not re-alleged in the First Amended 28 Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 1 ||v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 2 || pleading supersedes the original.”’); Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 3 ||2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 4 ||amended pleading may be “considered waived if not repled.”’). If Plaintiff fails to amend, 5 Court will dismiss this action for failure to state a claim and failure to prosecute. See 6 || Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“Ifa plaintiff does not take advantage 7 ||of the opportunity to fix his complaint, a district court may convert the dismissal of the 8 complaint into dismissal of the entire action.”’). 9 IT IS SO ORDERED. ‘ 10 || Dated: October 6, 2025 febut ¢ Lowe Hon.RobertS.Huie □□ 2 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8