Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL D. PERVOE, Case No. 25-cv-02271-CAB-MMP CDCR #C-59138, 12 ORDER GRANTING: Plaintiff, 13 (1) MOTION TO PROCEED IN v. FORMA PAUPERIS [Doc. No. 5]; 14 and JEFF MACOMBER, Secretary of CDCR, 15 (2) LEAVE TO FILE AMENDED et al., COMPLAINT [Doc. No. 7]. 16 Defendants. 17 18 Currently pending before the Court are two motions filed by Plaintiff Michael D. 19 Pervoe, who is a prisoner at Richard J. Donovan Correctional Facility (“RJD”) proceeding 20 pro se pursuant to 42 U.S.C. § 1983. Plaintiff seeks leave to proceed in forma pauperis 21 (“IFP”) pursuant to 28 U.S.C. § 1915(a) [Doc. No. 5], and leave to file an amended 22 complaint, [Doc. No. 7]. For the reasons explained, the Court GRANTS both motions. 23 I. Procedural History 24 On August 29, 2025, Plaintiff filed a civil rights complaint against Jeff Macomber, 25 the Secretary of the California Department of Corrections and Rehabilitation (“CDCR”), 26 Correctional Sergeant Perez, RJD Physician Clayton, and RJD Correctional Counselor 27 Esguerra. [Doc. No. 1.] Plaintiff claims to suffer from chronic incontinence and 28 gastrointestinal ulcerative colitis for which he was granted single-cell accommodations 1 while previously incarcerated in Stockton. [See id. at 3.] When he arrived at RJD, 2 however, he claims an Inmate Classification Committee (“ICC”) comprised of Defendants 3 Perez, Clayton, and Esguerra discontinued his prior accommodation and cleared him for a 4 “double cell assignment.” [Id.] Plaintiff refused to accept a cellmate, however, and on 5 August 25, 2025, was charged with a disciplinary infraction and placed in Administrative 6 Segregation (“Ad-Seg”). [Id.] He contends his segregation and the denial of a single-cell 7 housing accommodation violated his rights under Title II of the Americans with 8 Disabilities Act (“ADA”), the Rehabilitation Act, 29 U.S.C. § 794, and the Eighth and 9 Fourteenth Amendments. [Id. at 3–6.] In addition to seeking $125,000 in both general and 10 punitive damages in his complaint, [see id. at 8], Plaintiff also filed a motion for a 11 preliminary injunction requiring dismissal of all disciplinary action and reinstatement of 12 his single-cell status. [Doc. No. 2.] 13 However, because he failed to pay the civil filing fee required by 28 U.S.C. 14 § 1914(a), request leave to proceed IFP, or demonstrate he was entitled to preliminary 15 injunctive relief, on September 9, 2025, the Court denied Plaintiff’s motion and dismissed 16 the case without prejudice. [See Doc. No. 4.] The Court granted Plaintiff leave to proceed 17 by either paying the filing fee or submitting a properly-supported IFP motion within 45 18 days. The Court further advised that should Plaintiff elect to proceed IFP, his complaint 19 would be subject to an initial screening and potential dismissal pursuant to 28 U.S.C. 20 §§ 1915(e)(2) and 1915A, in part because he appeared to concede he failed to exhaust all 21 available administrative remedies prior to filing suit. [See id. at 6–7 & n.1.] 22 Plaintiff timely complied with the Court’s Order by filing an IFP motion [Doc. No. 23 5], followed soon after by a motion seeking leave to file an amended complaint, [Doc. No. 24 7]. 25 II. IFP Motion 26 All parties instituting any civil action, suit or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of 28 1 $405. See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire 2 fee at the time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant 3 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 4 cf. Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] 5 IFP application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the 6 fee[s] [a]re paid.”). 7 While “[t]he previous version of the IFP statute granted courts the authority to waive 8 fees for any person ‘unable to pay[,]’ . . . the PLRA [Prison Litigation Reform Act] 9 amended the IFP statute to include a carve-out for prisoners: under the current version of 10 the IFP statute, ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the 11 prisoner shall be required to pay the full amount of a filing fee.’” Hymas, 73 F.4th at 767 12 (quoting 28 U.S.C. § 1915(b)(1)). Section 1915(b) “provides a structured timeline for 13 collecting this fee[.]” Id. (citing 28 U.S.C. § 1915(b)(1), (2)). 14 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of 15 all assets [they] possess[,]” as well as “a “certified copy of the[ir] trust fund account 16 statement (or institutional equivalent) for . . . the 6-month period immediately preceding 17 the filing of the complaint[.]” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d 18 1113, 1119 (9th Cir. 2005). Using this financial information, the court “shall assess and 19 when funds exist, collect, . . . an initial partial filing fee,” which is “calculated based on 20 ‘the average monthly deposits to the prisoner’s account’ or ‘the average monthly balance 21 in the prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in 22 ‘monthly payments of 20 percent of the preceding month’s income credited to the 23 prisoner’s account.” Hymas, 73 F.4th at 766 n.3 (quoting 28 U.S.C. § 1915(b)(1), (2)). 24 Thus, while prisoners may qualify to proceed IFP without having to pay the statutory filing 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does not apply to persons granted leave to proceed 28 1 fee in one lump sum, they nevertheless remain obligated to pay the full amount due in 2 monthly payments. See Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) 3 & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). 4 Plaintiff’s IFP motion complies with both 28 U.S.C. § 1915(a)(1) and (2). In 5 support, and on his behalf, the CDCR submitted a certified copy of his Inmate Trust 6 Account Statement Report, as well as a Prison Certificate authorized by a RJD accounting 7 officer. [Doc. No. 6.] See also S.D. Cal. CivLR 3.2; Andrews, 398 F.3d at 1119. These 8 documents show Plaintiff had an available balance of $162.25 at the time of filing, $141.17 9 in average monthly deposits, and maintained a $199.39 average monthly balance in his 10 account over the 6-month period immediately preceding the filing of the Complaint. [Doc. 11 No. 6 at 2–3.] 12 Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed IFP [Doc. No. 5] 13 and assesses an initial partial filing fee of $39.87 pursuant to 28 U.S.C. § 1915(b)(1). This 14 initial fee will be collected only if sufficient funds are available in Plaintiff’s account at the 15 time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall 16 a prisoner be prohibited from bringing a civil action or appealing a civil or criminal 17 judgment for the reason that the prisoner has no assets and no means by which to pay the 18 initial partial filing fee”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts 19 as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure 20 to pay . . . due to the lack of funds available to him when payment is ordered”). The CDCR 21 must thereafter collect the full balance of the $350 total fee owed and forward payments to 22 the Clerk of the Court as provided by 28 U.S.C. § 1915(b)(2). 23 III. Motion for Leave to File Amended Complaint 24 On December 3, 2025, just after he submitted his IFP motion, but before the Court 25 had an opportunity to conduct its initial screening of his complaint as required by 28 U.S.C. 26 §§ 1915(e)(2) and 1915A, Plaintiff filed a single document captioned both as a “Request 27 for Leave to File an Amended Complaint Pursuant to Rule 15” and as a “First Amended 28 Complaint.” [See Doc. No. 7 at 1.] 1 “A party may amend its pleading once as a matter of course within: (A) 21 days 2 after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 3 days after service of a responsive pleading or 21 days after service of a motion under Rule 4 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(A), (B). Otherwise, a 5 party must seek the opposing party’s written consent or leave of court to amend a pleading. 6 Fed. R. Civ. P. 15(a)(2); Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1006 (9th 7 Cir. 2015). 8 Here, while leave to amend is not required as Plaintiff’s case is still in its preliminary 9 stages, his original Complaint has yet to be screened, and no party has been served, the 10 Court nevertheless GRANTS Plaintiff’s request to amend. [Doc. No. 7.] See e.g., 11 Williams v. Dumanis, No. 3:16-CV-1303-WQH-NLS, 2016 WL 6893600, at *3 (S.D. Cal. 12 Nov. 22, 2016) (granting pro se prisoner’s motion for leave to amend to add new parties 13 and claims during initial screening stage “even though the Court’s permission to amend 14 was not required” under Rule 15(a)(1)). 15 However, the Court declines to further construe Plaintiff’s motion to also function 16 as his First Amended Complaint because the pleading requires reference to his original 17 Complaint and is not complete in itself. See S.D. Cal. CivLR 15.1.a (“Every pleading to 18 which an amendment is permitted as a matter of right or has been allowed by court order, 19 must be complete in itself without reference to the superseded pleading.”); Ramirez, 806 20 F.3d at 1008 (“[A]n amended complaint supersedes the original, the latter being treated 21 thereafter as non-existent.” (internal quotation marks and citation omitted)). 22 For example, while Plaintiff clearly wishes to add Drs. Holloway and Diaz, two 23 clinical psychologists, as Defendants, and claims the doctors “failed to advocate for his 24 need for [a] single cell,” and failed to “assess and report the impact [of his] medical 25 condition during [a] disciplinary evaluation,” [Doc. No. 7 at 1, 3], his pleading does not re- 26 allege the factual basis giving rise to his original claims for relief or specify which of the 27 original causes of action he wishes to pursue against these new parties. See Fed. R. Civ. 28 P. 8(a)(2) (“A pleading . . . must contain . . . a short and plain statement of the claim 1 showing the pleader is entitled to relief[.]”); Gibson v. City of Portland, 165 F.4th 1265, 2 1290 (9th Cir. 2026) (“[P]ermitting parties to file pleadings that do not tie factual averments 3 against specific parties to individual causes of action infringes Rule 8.”). 4 Plaintiff’s request further includes reference to actions taken by previously named 5 parties on September 23, 2025, which is after he filed suit. [See, e.g., Doc. No. 7 at 4.] “A 6 complaint which attempts to supplement and reference prior pleadings is not complete in 7 itself, does not set forth all claims in short and plain terms, and is not concise and direct.” 8 Lambert v. Huertas, No. 3:19-CV-05980-RJB-JRC, 2021 WL 694802, at *1 (W.D. Wash. 9 Feb. 22, 2021). Although the pleadings of pro se litigants are liberally construed, attempts 10 to “tack on claims and defendants to [an] original complaint in a piecemeal fashion” are 11 improper. Cook v. King Cnty. Corr. Facility, No. 2:21-CV-00238-RSM BAT, 2021 WL 12 3287749, at *2 (W.D. Wash. Aug. 2, 2021). In short, Plaintiff may not amend by simply 13 “filing separate documents intended to be read together as a single document.” Hamilton 14 v. Miller, No. 25-CV-5511-JLR-SKV, 2026 WL 612754, at *2 (W.D. Wash. Mar. 4, 2026). 15 Instead, Plaintiff’s amended complaint must stand on its own, give sufficient notice to each 16 defendant of the grounds upon which his claims rest, and “allege with at least some degree 17 of particularity overt acts which [each] defendant[] engaged in” in order to assert a 18 plausible claim for relief. See Jones v. Cmty Redev. Agency, 733 F.2d 646, 649 (9th Cir. 19 1984); Gibson, 165 F.4th at 1289 (“It is not the job of the district courts to make sense of 20 the pleading, to supply facts to support the claim, or to imagine claims that might fit the 21 facts.”). 22 For these reasons, and in light of Plaintiff’s pro se status, the Court GRANTS his 23 Request for Leave to Amend [Doc. No. 7], but finds the document he has submitted fails 24 to comply with the requirements. [Doc. No. 7.] Instead, Plaintiff is directed to file his First 25 Amended Complain no later than April 30, 2026. He is strongly advised to use the Court’s 26 form Amended Complaint under the Civil Rights Act, 42 U.S.C. § 1983, which will be 27 provided to him together with a copy of this Order. Plaintiff must include Case No. 25-cv- 28 2271-CAB-MMP in the caption, name all the Defendants he wishes to hold liable, re-allege 1 the factual basis for each discrete cause of action he seeks to pursue, and describe with 2 particularity when and what each Defendant is alleged to have personally done to cause 3 him injury in one single, comprehensive, and amended pleading. See Brazil v. U.S. Dep’t 4 of Navy, 66 F.3d 193, 199 (9th Cir. 1995) (“Although a pro se litigant . . . may be entitled 5 to great leeway when the court construes his pleadings, those pleadings nonetheless must 6 meet some minimum threshold in providing a defendant with notice of what it is that it 7 allegedly did wrong.”). 8 Once filed, Plaintiff’s First Amended Complaint will become the operative pleading 9 in this case, and it will be subject to mandatory initial screening pursuant to 28 U.S.C. 10 §§ 1915(e)(2) and 1915A(a). See Hebrard v. Nofziger, 90 F.4th 1000, 1006–07 (9th Cir. 11 2024) (“Under the PLRA, a ‘court shall dismiss the case at any time if the court determines 12 that . . . the action . . . fails to state a claim on which relief may be granted.’” (quoting 28 13 U.S.C. § 1915(e)(2)(B)(ii)); see also Nordstrom v. Ryan, 762 F.3d 903, 908 n.1 (9th Cir. 14 2014) (discussing 28 U.S.C. § 1915A(a)’s pre-answer screening requirement for prisoner 15 complaints). Plaintiff’s original Complaint will be “treated as non-existent.” Ramirez, 806 16 F.3d at 1008; see also Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (“[A]fter 17 amendment the original pleading no longer performs any function[.]”). 18 Should Plaintiff fail to file a First Amended Complaint by April 30, 2026, however, 19 his original Complaint, [Doc. No. 1], will serve as the operative pleading in this case and 20 the Court will conduct its mandatory initial screening upon that pleading pursuant to 21 28 U.S.C. §§ 1915(e)(2) and 1915A(a). 22 III. CONCLUSION 23 Accordingly, the Court: 24 (1) GRANTS Plaintiff’s Motion to Proceed IFP [Doc. No. 5]; 25 (2) ORDERS the Secretary of the CDCR, or his designee, to collect from 26 Plaintiff’s trust account the $39.87 initial filing fee assessed, if those funds are available 27 at the time this Order is executed, and forward whatever balance remains of the full $350 28 owed in monthly payments to the Clerk of the Court each time the amount in their account 1 |}exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2); 2 (3) DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 3 || Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, via 4 ||U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdecr.ca.gov; 5 (4) GRANTS Plaintiffs Request for Leave to File an Amended Complaint, [Doc. 6 || No. 7], no later than April 30, 2026; and 7 (5) DIRECTS the Clerk to provide Plaintiff with a blank copy of the Court’s 8 First Amended Complaint under the Civil Rights Act, 42 U.S.C. § 1983, available at: 9 || https://fedcourts.sharepoint.com/sites/CASD- 10 || □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 11 || CaseService%o2FNew%20PDF%20Forms%2F1983%20First%20Amended%20Complain 12 |) t%2Epdf&parent=%2Fsites%2FCASD%2DCaseService%2FNew%20PDF%20Forms. 13 □□ □□ SO ORDERED. 14 || Dated: March 18, 2026 & 15 Hon. Cathy Ann Bencivengo 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 8