1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 KARINA ANDERSON, an individual; Case No.: 20-cv-00315-AJB-JLB LERAJJAREAN RA-O-KEL-LY, an 10 individual, ORDER: 11 Plaintiffs, (1) DENYING PLAINTIFFS’ 12 v. MOTION TO FILE IN FORMA 13 PAUPERIS AS MOOT; GAVIN NEWSON, Governor of the State

14 of California, et al., (2) DENYING PLAINTIFFS’ EX 15 Defendants. PARTE MOTION FOR

TEMPRORARY RESTRAINING

16

ORDER AS MOOT; AND

17 (3) DISMISSING THE COMPLAINT 18

WITH LEAVE TO AMEND

19 (Doc. Nos. 10, 11, 13) 20

21 The Court reviews pro se Plaintiffs, Karina Anderson and Lerajjarean 22 Ra-O-Kel-Ly’s (“Plaintiffs”) first amended complaint (“FAC”) under 28 U.S.C. § 1915(e), 23 as required when plaintiffs file a motion to proceed in forma pauperis (“IFP”). (Doc. Nos. 24 10, 11.) Pursuant to this mandatory screening, the Court finds that Plaintiffs’ FAC does not 25 sufficiently state a claim for relief. Thus, the Court DENIES as moot Plaintiffs’ IFP 26 motions, (Doc. Nos. 10, 11), and DENIES as moot Plaintiffs’ motion for temporary 27 restraining order, (Doc. No. 13), and DISMISSES Plaintiffs’ FAC with leave to amend, 28 (Doc. No. 9). 1 I. SCREENING UNDER 28 U.S.C. § 1915(e) 2 Under 28 U.S.C. § 1915(e)(2), when reviewing an IFP motion, the Court must rule 3 on its own motion to dismiss before the complaint is served. Lopez v. Smith, 203 F.3d 1122, 4 1127 (9th Cir. 2000). See also Butler v. Nat’l Cmty. Renaissance of California, 766 F.3d 5 1191, 1204 n.8 (9th Cir. 2014) (noting that “[o]ther federal circuit courts of appeals have 6 held that the [90]–day service period is tolled until the court screens a plaintiff’s in forma 7 pauperis complaint and authorizes service of process”) (citations omitted). The Court must 8 dismiss the complaint if it is frivolous, malicious, fails to state a claim upon which relief 9 may be granted, or seeks monetary relief from a defendant immune from such relief. 28 10 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) 11 (noting 28 U.S.C. § 1915(e)(2)(B) is “not limited to prisoners”); Lopez, 203 F.3d at 1127 12 (“[§] 1915(e)) not only permits but requires a district court to dismiss an [IFP] complaint 13 that fails to state a claim”). 14 “The standard for determining whether a plaintiff has failed to state a claim upon 15 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 16 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 17 1108, 1112 (9th Cir. 2012). To survive a motion to dismiss, the complaint must contain “a 18 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 19 R. Civ. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as true, 20 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 21 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007)). Detailed 22 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of 23 action, supported by mere conclusory statements, do not suffice.” Id. Accordingly, the 24 Court “may dismiss as frivolous complaints reciting bare legal conclusions with no 25 suggestion of supporting facts[.]” Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984) 26 (internal quotations omitted). 27 However, pro se pleadings are held to “less stringent standards than formal pleadings 28 drafted by lawyers” because pro se litigants are more prone to making errors in pleading 1 than litigants represented by counsel. Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal 2 quotations omitted); see Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded 3 by statute on other grounds. Thus, the Supreme Court states federal courts should liberally 4 construe the “‘inartful pleading’ of pro se litigants.” Eldridge v. Block, 832 F.2d 1132, 5 1137 (9th Cir. 1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365 (1982)). 6 A. Background 7 On February 18, 2020, Plaintiffs, related as husband and wife, filed their original 8 complaint alleging that because Plaintiff Ra-O-Kel-Ly must register as a sex offender in a 9 public registry, they are homeless and suffer various harms resulting from homelessness. 10 (See generally Doc. No. 1.) On May 5, 2020, the Court dismissed Plaintiffs’ original 11 complaint, finding that “the crux of their complaint appears to be their allegation regarding 12 a violation of the Equal Protection Clause of the Fourteenth Amendment, and that Plaintiffs 13 “fail[ed] to allege both that they are similarly situated, and that there is no rational basis to 14 treat sex offenders differently.” (Doc. No. 8 at 4.) The Court also found that Plaintiffs’ 15 complaint failed to meet Federal Rule of Civil Procedure 8’s requirement of “a short and 16 plain statement of the claim showing that the pleader is entitled to relief.” (Id. at 3.) The 17 Court thereafter granted Plaintiffs leave to amend their complaint. (Id. at 6.) 18 On June 17, 2020, Plaintiffs filed a FAC, again alleging an array of statutory and 19 constitutional violations, all of which stem from an equal protection claim under the 20 Fourteenth Amendment for their inability to secure housing due to Plaintiff Ra-O-Kel-Ly’s 21 status as a sex offender. (See generally Doc. No. 9.) In addition, Plaintiffs allege that arrests 22 and issuance of tickets “for being homeless” amounts to “cruel and unusual punishment” 23 under the Eight Amendment. (See Id. at 30.) They also allege discrimination under the 24 Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973. (See Id. at 25 31, 36.) 26 B. Plaintiffs Fail to State a Claim for Which Relief Can Be Granted 27 As previously indicated, Plaintiffs’ FAC contains various claims, the crux of which 28 appear predicated on a violation of the Equal Protection Clause of the Fourteenth 1 Amendment. (See generally Doc. No. 9 at 18–37.) For instance, in their FAC, Plaintiffs 2 make repeated references to discrimination in the form of being deprived housing 3 opportunities based on Plaintiff Ra-O-Kel-Ly’s sex offender status. (See, e.g., Id. at 10, 14, 4 16–18, 20, 25, 27–29.) As the Court noted in its earlier decision dismissing Plaintiffs’ 5 original complaint, the Equal Protection Clause of the Fourteenth Amendment requires 6 only that persons who are similarly situated be treated alike. City of Cleburne v. Cleburne 7 Living Center, Inc., 473 U.S. 432, 439 (1985); Hartmann v. California Dep’t of Corr. & 8 Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 705 F.3d 1021, 1030 9 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). 10 To state a claim under the Equal Protection Clause, Plaintiffs must show that 11 Defendants intentionally discriminated against them based on their membership in a 12 protected class. Hartmann, 707 F.3d at 1123; Furnace, 705 F.3d at 1030; Serrano v. 13 Francis, 345 F.3d 1071, 1082 (9th Cir. 2003). Sex offenders do not constitute a suspect 14 class for equal protection purposes. See United States v. LeMay, 260 F.3d 1018, 1030– 15 31 (9th Cir. 2001). Where no suspect class or fundamental right is implicated, equal 16 protection claims are subject to a rational basis review. See Village of Willowbrook v. 17 Olech, 528 U.S. 562, 564 (2000); United States v. Juvenile Male, 670 F.3d 999, 1009 (9th 18 Cir. 2012); Nelson v. City of Irvine, 143 F.3d 1196, 1205 (9th Cir. 1998) (“Unless a 19 classification trammels fundamental personal rights or implicates a suspect classification, 20 to meet constitutional challenge the law in question needs only some rational relation to a 21 legitimate state interest.”). 22 Because sex offenders is not a suspect class, Plaintiffs’ equal protections claims are 23 subject to the lowest level of scrutiny: rational basis review. See Village of Willowbrook, 24 528 U.S. at 564. Thus, to the extent Plaintiffs claim they are being denied equal protection 25 under the Fourteenth Amendment because they are treated differently from persons who 26 are not registered sex offenders, they fail to state an equal protection claim. The Court 27 reiterates that this is because Plaintiffs fail to allege that they are similarly situated and that 28 there is no rational basis to treat sex offenders differently. Cf. Juvenile Male, 670 F.3d at 1 1010 (noting that “SORNA’s requirements satisfy rational basis review and do not violate 2 the Equal Protection Clause.”); Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir. 2004) 3 (holding, with respect to Alaska’s sex offender registration laws, that “the statute’s 4 provisions serve a legitimate non-punitive purpose of public safety, which is advanced by 5 alerting the public to the risk of sex offenders in their community”) (internal quotations 6 and citations omitted). 7 To the extent that Plaintiffs allege a violation of the Eight Amendment to the U.S. 8 Constitution, they fail to state a claim. (See Doc. No. 9 at 30.) Plaintiffs have not alleged a 9 law that criminalizes the “simple act of sleeping outside on public property” when there is 10 no option to sleeping indoors. Martin v. City of Boise, 920 F.3d 584, 617 (9th Cir. 2019). 11 See also id. (“Our holding is a narrow one. Like the Jones panel, we in no way dictate to 12 the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes 13 to sit, lie, or sleep on the streets at any time and at any place.”) (internal quotations and 14 alterations omitted). Moreover, other than generalized assertions that they fear being 15 ticketed or fined, Plaintiffs have not pled facts sufficient to show they have been subjected 16 to excessive fines or a credible threat of being subjected to such fines. Thus, they have 17 failed to state an Eight Amendment claim. 18 To the extent that Plaintiffs allege a violation of Title II of the ADA and Section 504 19 of the Rehabilitation Act, they have failed to allege facts to show that they are being 20 discriminated against due to their disabilities. See Weinreich v. Los Angeles Cty. Metro. 21 Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (noting that in the context of Title II ADA 22 and Section 504 Rehabilitation Act claims, the discrimination must be by reason of the 23 plaintiff’s disability). To the contrary, Plaintffs’ FAC indicates that they have been denied 24 entry into certain homeless shelters because of Plaintiff Ra-O-Kel-Ly’s sex offenders, not 25 because of any disability. (See Doc. No. 9 at 34 (alleging that “denying shelter to registered 26 sex offenders” yields discrimination in the form of being unable “to obtain parking permits 27 available to people with physical addresses and benefits of the City’s parking program”).) 28 Moreover, it is unclear what Plaintiffs’ alleged disabilities are, and which specific 1 “policies and practices” are at issue. (Id.) The FAC contains only generalized references to 2 “shelter, housing, and safe parking programs.” (Id. at 34, 37.) And while Plaintiffs request 3 that they be allowed “to legally park their vehicles on City streets or other public property 4 and to utilize their vehicles for shelter” until they secure housing, (Id. at 33), such 5 accommodations would appear to fundamentally alter the nature of city services provided, 6 see 28 C.F.R. § 35.130(b)(7)(i). In addition, Plaintiffs have not shown that they have been 7 denied access to City streets or other public property in a way different from those without 8 disabilities. Thus, for the foregoing reasons, Plaintiffs have failed to state a claim under the 9 ADA and Rehabilitation Act. See Thompson, 295 F.3d 890, 895 (9th Cir. 2002) (per 10 curiam) (noting the elements for an ADA discrimination claim); Weinreich114 F.3d 976, 11 978 (9th Cir. 1997) (noting the elements for ADA and Rehabilitation Act claims). 12 II. MOTION TO PROCEED IN FORMA PAUPERIS 13 Plaintiffs move to proceed IFP under 28 U.S.C. § 1915. All parties instituting any 14 civil action, suit, or proceeding in a district court of the United States, except an application 15 for writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An action 16 may proceed despite a plaintiff’s failure to prepay the entire fee only if the plaintiff is 17 granted leave to proceed IFP under 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 18 1176, 1177 (9th Cir. 1999). All actions sought to be filed IFP under § 1915 must be 19 accompanied by an affidavit, signed by the applicant under penalty of perjury, that includes 20 a statement of all assets which shows inability to pay initial fees or give security. Civ 21 LR 3.2.a. 22 However, even if a plaintiff meets the income requirement, the Ninth Circuit 23 indicates that leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) is 24 properly granted only when plaintiff has demonstrated poverty and presented a claim that 25 is not factually or legally frivolous. See Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 26 1370 (9th Cir. 1987) (emphasis added). 27 Thus, a court “may deny leave to proceed in forma pauperis at the outset if it appears 28 from the face of the proposed complaint that the action is frivolous or without merit.” Id. 1 ||For the reasons set forth above Plaintiffs’ FAC is without merit, and thus, the Court 2 || DENIES Plaintiffs’ IFP motions as moot. (Doc. Nos. 10, 11.) 3 EX PARTE MOTION 4 Plaintiffs filed an ex parte motion for temporary restraining order and preliminary 5 ||injunction on October 22, 2020. However, as Plaintiffs’ FAC failed to state a cognizable 6 ||claim, their motion is moot. Accordingly, the Court DENIES as moot Plaintiffs’ ex parte 7 motion for temporary restraining order and preliminary injunction. (Doc. No. 13.) 8 ||IV. CONCLUSION 9 In sum, the Court DISMISSES Plaintiffs’ FAC, (Doc. No. 9), DENIES as moot 10 || Plaintiffs’ IFP motions, (Doc. Nos. 10, 11), and DENIES as moot Plaintiffs’ ex parte 11 |}motion for temporary restraining order and preliminary injunction, (Doc. No. 13). 12 Leave to amend is to be given freely, Fed. R. Civ. P. 15(a)(2), but a court’s discretion 13 || to deny leave “is particularly broad where plaintiff has previously amended the complaint.” 14 ||Ascon Props., Inc. v Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). Thus, Plaintiffs’ 15 is DISMISSED WITHOUT PREJUDICE, and Plaintiffs will have a final 16 || opportunity to amend their complaint. Plaintiffs must file both (1) a renewed IFP motion 17 (2) an amended complaint on or before November 16, 2020, or risk having this case 18 || dismissed with prejudice for failure to prosecute. 19 IT IS SO ORDERED. 20 1 Dated: October 26, 2020 | ZS Zz : Le 22 Hon. Anthony J.@Battaglia United States District Judge 23 24 25 26 27 28