Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH MOORE, Case No.: 25-cv-2980-AJB-BLM CDCR #BD8941, 12 ORDER: Plaintiff, 13 (1) DISMISSING FIRST AMENDED vs. 14 COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 15 U.S.C. §§ 1915(e)(2)(B) AND JEFF MACOMBER, CDCR, DOES 1–10, 16 1915A(b); and DR. SATO, 17 Defendants. (2) DENYING MOTION FOR TEMPORARY RESTRAINING 18 ORDER (Doc. No. 8) 19 20 I. INTRODUCTION 21 Plaintiff Joseph Moore (“Plaintiff” or “Moore”) is a prisoner proceeding pro se with 22 a civil rights action. On February 4, 2026, the Court granted Moore’s application to proceed 23 in forma paupers (“IFP”), dismissed the original complaint without prejudice, and denied 24 her1 motion for a temporary restraining order (“TRO”). (See Doc. No. 6.) The Court also 25 granted Moore leave to file an amended complaint. (Id.) 26 27 1 Because Plaintiff identifies as a transgender woman the Court will refer to Plaintiff with female 28 1 On February 13, 2026, Plaintiff filed a First Amended Complaint (“FAC”) and 2 another TRO motion. (See Doc. Nos. 7; 8.) As she did in her original complaint, in her 3 FAC, Moore alleges violations of her rights under the Americans with Disabilities Act 4 (“ADA”) and the Rehabilitation Act (“RA”). (Doc. No. 7 at 8–11.) She also raises Eighth 5 and Fourteenth Amendments claims pursuant 42 U.S.C. § 1983. (Id. at 3–7.) In her TRO 6 motion, Moore again seeks an injunction preventing Defendants from assigning her a 7 cellmate and requiring Defendants to permanently classify her for a single cell. (See Doc. 8 No. 8.) For the reasons discussed below, the Court dismisses the FAC without prejudice 9 for failure to state a claim and denies the TRO without prejudice as moot. 10 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 11 A. Legal Standard 12 Because Moore is a prisoner proceeding IFP on a civil rights complaint against 13 government defendants, the Court must screen the FAC and is required to sua sponte 14 dismiss the case at any time it concludes the action is frivolous or malicious, fails to state 15 a claim upon which relief may be granted, or seeks monetary relief from a defendant 16 immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A; Byrd v. Phoenix Police 17 Dep’t, 885 F.3d 639, 641–42 (9th Cir. 2018). “The standard for determining whether 18 Plaintiff has failed to state a claim upon which relief can be granted under 19 § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for 20 failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 21 12(b)(6) requires a complaint “contain sufficient factual matter . . . to state a claim to relief 22 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 23 marks omitted). While detailed factual allegations are not required, “[t]hreadbare recitals 24 of the elements of a cause of action, supported by mere conclusory statements, do not 25 suffice” to state a claim. Id. The “mere possibility of misconduct” or “unadorned, the 26 defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 27 standard. Id. 28 /// 1 B. Plaintiff’s Allegations 2 Moore states she is a transgender inmate confined at R.J. Donovan Correctional 3 Facility (“RJD”). (Doc. No. 7 at 3.) She alleges “Macomber, [the Secretary of the 4 California Department of Corrections and Rehabilitation (“CDCR”)], Dr. Sato, and Does 5 1–10 knew [she] faced substantial risk of psychological and physical harm, and knew the 6 classification of double-celling under CDCR’s egregious housing policy exacerbated her 7 ‘gender dysphoria.” (Id.) Moore states she informed “each Defendant” that if she was 8 forced into a double cell she would have to disrobe and use the toilet in front of a cellmate, 9 which would be “humiliating and psychologically harmful” to her. (Id.) 10 While Moore states she has been improperly classified for “double cell” housing, 11 she does not allege she has been assigned a cellmate. Rather, she states Defendants have 12 attempted to “force [her] into double-cell housing,” but does not elaborate on the specific 13 circumstances of these attempts, nor does she not state when they occurred.2 (Id.) Moore 14 alleges, however, that Defendants’ failure to classify her for a single cell causes her 15 emotional distress and makes her fear for her physical safety. (Id. at 3, 10.) 16 Moore also states that she told Dr. Sato, a psychologist, that she needed single cell 17 classification and housing due to her vulnerabilities but “he failed to act to protect her.” 18 (Id. at 4.) Specifically, Dr. Sato failed to recommend that Moore be classified for single 19 cell status despite Dr. Sato recommending other inmates with mental health conditions be 20 classified for a single cell. (Id. at 4, 7.) Moore also sent a letter to Macomber, “requesting 21 he protect Moore yet [Macomber] refused even though he knew [of] the heightened risks 22 and Moore’s single cell pleas.” (Id. at 4.) 23 C. Discussion 24 Moore names as defendants: the CDCR itself and Jeff Macomber (Secretary of the 25 26 27 2 Moore indicates her rights were violated on October 21, 2025, February 2, 2016 and “2017 – ongoing,” (see Doc. No. 7 at 1), but does not elaborate on what occurred on these dates in the body of her 28 1 CDCR), Sato, and Does 1–10 in their individual and official capacities. (Doc. No. 7 at 2.) 2 Moore alleges Defendants violated her rights under the Americans with Disabilities Act 3 (“ADA”) and the Rehabilitation Act (“RA”). (Id. at 8–11.) She also alleges violations of 4 the Eighth Amendment and Fourteenth Amendment pursuant to 42 U.S.C. § 1983. (Id. at 5 3–7.) Plaintiff seeks money damages and an injunction preventing Defendants “from 6 enforcing their egregious housing placement policy” and requiring Defendants grant her 7 “permanent single cell status.” (Id. at 13.) 8 1. ADA and RA 9 Plaintiff alleges Defendants3 violated her rights under the ADA and RA. (Doc. No. 10 7 at 8–11.) As discussed in this Court’s previous order, to state a claim under Title II of the 11 ADA, a plaintiff must allege: “(1) [s]he is an individual with a disability; (2) [s]he is 12 otherwise qualified to participate in or receive the benefit of some public entity’s services, 13 programs, or activities; (3) [s]he was either excluded from participation in or denied the 14 benefits of the public entity’s services, programs, or activities, or was otherwise 15 discriminated against by the public entity; and (4) such exclusion, denial of benefits, or 16 discrimination was by reason of [her] disability.” Guinn v. Lovelock Corr. Ctr., 502 F.3d 17 1056, 1060 (9th Cir. 2007) (internal quotations omitted). 18 To state a claim under Section 504 of RA, a plaintiff must allege she was: (1) an 19 individual with a disability; (2) otherwise qualified to receive the benefit; (3) denied the 20 21 22 3 The proper defendant to a Title II ADA claim is the public entity responsible for the alleged discrimination. United States v. Georgia, 546 U.S. 151, 153 (2006). As such, the CDCR is a proper 23 Defendant here. Moreover, a suit against a state official in his or her official capacity is also, in effect, a suit against the government entity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Thus, 24 because Plaintiff sues Macomber, Sato, and Does 1–10 in their official capacities, her ADA and RA claims 25 against them are not improper; however, they are redundant and as such may be subject to dismissal. See Center for Bio-Ethical Reform, Inc. v. Los Angeles Cty. Sheriff Dep’t, 533 F.3d 780, 799 (9th Cir. 2008) 26 (when plaintiff names both an officer in his official capacity and the government entity, “the court may dismiss the officer as a redundant defendant”); see also Hofschneider v. City of Vancouver, 182 F. Supp. 27 3d 1145, 1150 (W.D. Wash. 2016) (dismissing ADA and RA claims against individual defendants in their official capacities as redundant because the ADA and RA claims already were asserted against the City 28 1 benefits of the program solely by reason of her disability; and (4) the program receives 2 federal financial assistance. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). 3 Because of the similarities between the laws and remedies available, a complaint that 4 properly states a claim under Title II of the ADA also states a claim under Section 504 of 5 the RA. Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999). 6 In dismissing Plaintiff’s original complaint, the Court assumed gender dysmorphia4 7 to be a qualifying disability but found Moore failed to state a claim under the ADA or RA 8 because she failed to allege facts showing Defendants denied her a single cell classification 9 “by reason of [her]” gender dysmorphia. See Guinn, 502 F.3d at 1060 (emphasis added). 10 In her FAC, Moore again fails to plausibly allege she has been denied a single cell 11 classification “by reason of her disability.” Moore states that “CDCR has denied her safe 12 housing and subjected her to discrimination solely based on her disability.” (Doc. No. 7 at 13 8.) She also states “Defendants . . . violated the ADA by failing to accommodate [her] 14 disability of gender dysphoria by appropriately housing her due to serious medical needs 15 and discriminated against her due to her disability.” (Id.) But Moore provides no specific 16 facts to support these conclusory statements. Such allegations lacking in factual support 17 constitute an improper “formulaic recitation” of an essential element required to state a 18 19 20 4 The statutory definition of disability is “a physical or mental impairment that substantially limits 21 one or more major life activities.” 42 U.S.C. § 12102(A). But, pursuant to § 12211, “the term ‘disability shall not include . . . transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity 22 disorders not resulting from physical impairments, or other sexual behavior disorders[.]’” 42 U.S.C. § 12211(b)(1). While this Court is unaware of any controlling law in the Ninth Circuit on whether gender 23 dysmorphia is a qualifying disability, other federal courts have presumed so. See, e.g., Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022) (holding that the plaintiff “has plausibly alleged that gender dysphoria does 24 not fall within the ADA’s exclusion for ‘gender identity disorders not resulting from physical 25 impairments.’ ”); see also Doe v. Georgia Dep’t of Corr., 730 F. Supp. 3d 1327, 1348 (N.D. Ga. 2024) (“The ADA does not exclude gender dysphoria from its protection.”); Doe v. Horne, No. 23-cv-00185- 26 TUC-JGZ, 2024 WL 3091984, at *4 (D. Ariz. June 21, 2024) (finding that gender dysphoria qualifies as a disability under the ADA and RA); . 27 28 1 claim under the ADA and RA. See Iqbal, 556 U.S. at 681 (2009) (stating “formulaic 2 recitations” of elements of cause of action are insufficient.); see also Ritter v. Hunt, No. 3 24-CV-087-H-DLC, 2025 WL 1194016, at *2 (D. Mont. Apr. 24, 2025) (“[Plaintiff] does 4 not allege any facts that, if true, would establish that any defendant discriminated against 5 him on the basis of his disability.”); Olson v. Carter, No. 2:21-CV-00929-JAM-CKD-PS, 6 2021 WL 3115126, at *7 (E.D. Cal. July 22, 2021) (dismissing ADA and RA claims as 7 conclusory where “ the complaint does not contain any additional supporting facts” to show 8 the plaintiff was denied benefits “because of [their] disability”); Turner v. Ralkey, No. 9 3:20-CV-5472-TL-DWC, 2022 WL 18460747, at *18 (W.D. Wash. Apr. 26, 2022) 10 (dismissing ADA and RA claims when transgender Plaintiff failed to meet her burden to 11 establish defendants’ decisions regarding her housing were “by reason of” her gender 12 dysphoria). Thus, Moore has failed to plausibly allege discrimination “by reason of her 13 disability.” See Guinn, 502 F.3d at 1060. 14 Accordingly, the Court DISMISSES Plaintiff’s ADA and RA claims without 15 prejudice for failure to state a claim. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); 16 Iqbal, 556 U.S. at 678. 17 2. 42 U.S.C. § 1983 18 In her FAC, Moore also brings claims pursuant to 42 U.S.C. § 1983. (Doc. No. 7 at 19 3–7.) Moore alleges Defendants Macomber, Sato and Does 1–10 violated her Eighth 20 Amendment and Fourteenth Amendment rights in their individual capacities. (Id. at 5, 7.) 21 To state a claim under § 1983, a plaintiff must plausibly allege “both (1) deprivation 22 of a right secured by the Constitution and laws of the United States, and (2) that the 23 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 24 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 25 a. Does 1–10 26 As an initial matter, the Court finds Moore has failed to state a claim against any 27 Doe Defendant. As discussed in this Court’s previous order, while the use of fictitiously 28 named “Doe” defendants is generally not favored, Gillespie v. Civiletti, 629 F.2d 637, 642 1 (9th Cir. 1980), amendment is allowed to substitute true names for fictitiously named 2 defendants, Merritt v. County of Los Angeles, 875 F.2d 765, 768 (9th Cir. 1989). Here, 3 however, Moore has again failed to make any specific allegations against any individually 4 identified Doe Defendant; instead she references “Does 1–10” only collectively. (See Doc. 5 No. 7 at 3–6.) If Plaintiff wants to state claims against unknown defendants, she must 6 identify them individually (i.e. Doe 1, Doe 2, etc.) and specify what each separately 7 identified unknown individual did. She “must allege sufficient facts to show how each doe 8 defendant individually violated [her] constitutional rights. If [s]he does so, [s]he may be 9 given leave to obtain the names of doe defendants during discovery and seek leave to 10 amend to name those defendants.” Finefeuiaki v. Maui Police Dep’t, No. 18-CV-00325- 11 JAO-KSC, 2018 WL 4839001, at *3 (D. Haw. Oct. 4, 2018) (citing Wakefield v. Thompson, 12 177 F.3d 1160, 1163 (9th Cir. 1999)). 13 Therefore, Plaintiff’s § 1983 claims against “Does 1–10” are dismissed without 14 prejudice for failure to state a claim against any individual Doe Defendant. See 28 U.S.C. 15 §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678. 16 b. Eighth Amendment 17 Next, Moore fails to state an Eighth Amendment failure-to-protect claim against 18 Defendants Macomber and Sato. The Eighth Amendment imposes a duty on prison 19 officials to “take reasonable measures to guarantee the safety of the inmates” and protect 20 them from “violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 21 832–33 (1994) (internal quotation marks and citation omitted). To state a failure-to-protect 22 claim, a plaintiff must plausibly allege (1) she was subjected to conditions posing a 23 substantial risk of serious harm to her safety; and (2) defendants were deliberately 24 indifferent to those risks. Id. at 837. 25 As to the first component, Moore fails to sufficiently allege her “double cell” 26 classification amounts to a substantial risk of serious harm to her safety. A “mere suspicion 27 that an attack will occur” is not enough to support a cognizable Eighth Amendment claim. 28 Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). And here, while Moore has been 1 classified for a “double cell,” and she vaguely states that Defendants “attempted to force 2 her [to] double-cell,” she has not alleged she was ever given a cellmate. (See Doc. No. 7 at 3 3.) Nor has she alleged sufficient facts to show the mere possibility she may be assigned 4 an unspecified cellmate in the future amounts to a threat to her safety. “[S]peculative and 5 generalized fears of harm at the hands of other prisoners do not rise to a sufficiently 6 substantial risk of serious harm.” Williams v. Wood, 223 Fed. App’x. 670, 671 (9th Cir. 7 2007) (concluding the district court properly dismissed failure-to-protect claim because the 8 plaintiff “did not allege that he has been assaulted or threatened with an assault by other 9 prisoners . . . and his speculative and generalized fears of harm at the hands of other 10 prisoners do not rise to a sufficiently substantial risk of serious harm to his future health”); 11 see also Torres v. Avalos, No. 22-CV-00053-FWS-AGR, 2024 WL 3008864, at *3 (C.D. 12 Cal. Mar. 19, 2024) (“It is not enough that Plaintiff feared assault.”). 13 Second, Moore has also failed to allege sufficient facts to show Macomber and Sato 14 acted with “deliberate indifference” to her health or safety. Farmer, 511 U.S. at 834. To 15 show deliberate indifference, a plaintiff must demonstrate that the official displayed a 16 subjective indifference “to a substantial risk of serious harm.” Frost v. Agnos, 152 F.3d 17 1124, 1128 (9th Cir. 1998). “Deliberate indifference” is evidenced only when “the official 18 knows of and disregards an excessive risk to inmate health or safety; the official must both 19 be aware of facts from which the inference could be drawn that a substantial risk of serious 20 harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. 21 Here, while Moore states she informed Macomber and Sato that she feared for her 22 safety as a transgender inmate if she were to be given a cellmate, she does not allege 23 sufficient facts to show Macomber or Sato subjectively “drew th[e] inference” that a 24 “substantial risk of serious harm” to Moore’s existed. See id. And because Moore does not 25 allege she has been given a cellmate and states no facts regarding any specific or 26 particularized threat, she has not plausibly alleged Macomber and Sato were deliberately 27 indifferent to her safety. See Berg, 794 F.2d at 459 (“The deliberate indifference standard 28 ‘does not require that the guard or official believe to a moral certainty that one inmate 1 intends to attack another at a given place at a time certain before that officer is obligated to 2 take steps to prevent such an assault. But, on the other hand, he must have more than a 3 mere suspicion that an attack will occur.’”); Elias v. Griffin, No. 2:23-CV-02940-MWF- 4 JC, 2024 WL 4406823, at *7 (C.D. Cal. June 18, 2024) (finding transgender Plaintiff who 5 failed to allege she was ever given a cellmate had not shown any Defendant actually and 6 proximately caused a deprivation or injury and thus failed to state an Eighth Amendment 7 claim). 8 The Court therefore DISMISSES Moore’s Eighth Amendment claims against all 9 Defendants for failure to state a claim. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); 10 Iqbal, 556 U.S. at 678. 11 c. Equal Protection 12 Finally, Moore alleges Defendants Macomber and Sato violated her Fourteenth 13 Amendment right to equal protection by failing to ensure she was classified for a single 14 cell. (Doc. No. 7 at 6–7.) To state an equal protection claim, a plaintiff generally must 15 “show that the defendants acted with an intent or purpose to discriminate against [her] 16 based upon membership in a protected class.” Thornton v. City of St. Helens, 425 F.3d 17 1158, 1166 (9th Cir. 2005) (citation and internal quotation marks omitted); see also 18 Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th Cir. 1998) (“We have 19 held that § 1983 claims based on Equal Protection violations must plead intentional 20 unlawful discrimination or allege facts that are at least susceptible of an inference of 21 discriminatory intent.”). The Ninth Circuit has held that gender identity is at least a “quasi- 22 suspect class.” Karnoski v. Trump, 926 F.3d 1180, 1200–01 (9th Cir. 2019). Thus, 23 discrimination on the basis of transgender status is subject to intermediate scrutiny. See id. 24 at 1201; see also Harrison v. Kernan, 971 F.3d 1069, 1080 (9th Cir. 2020) (adopting 25 intermediate scrutiny to gender-based equal protection claims arising in prison). 26 Here, however, Moore has failed to allege discriminatory intent. First, to the extent 27 Moore alleges cisgender female inmates with mental health issues are given single cells, 28 while she has been denied one, this is insufficient show discriminatory intent. That 1 cisgender female inmates, incarcerated at other prisons, with unspecified mental health 2 issues, may receive a single cell classification, this generalization is insufficient to show 3 Moore and such cisgender inmates “similarly situated.” 4 Moreover, Moore has failed to allege any facts showing Defendants are responsible 5 for her classification status, much less were motivated by discriminatory intent. Plaintiff 6 has submitted no evidence demonstrating any discriminatory motive underlying her double 7 cell classification on the part of Macomber or Sato. She merely states Macomber and Sato 8 are aware that she is transgender and does not want a cellmate due to her fear, anxiety and 9 need for privacy. Moore then speculates that the failure to provide her a single cell 10 classification suggests they are discriminating against her based on her gender identity. But 11 this is insufficient to show discriminatory motive. See Groux v. California Prison Indus. 12 Auth., No. 2:23-CV-2831-CSK P, 2025 WL 1248797, at *9 (E.D. Cal. Apr. 30, 2025) 13 (“Plaintiff speculates that actions were taken based on plaintiff’s transgender identity, but 14 plaintiff sets forth no facts evidencing discriminatory intent on the part of a particular 15 defendant.”); Harris v. Holguin, No. 18-CV-10382-DMG-DFM, 2019 WL 7987683, at *4 16 (C.D. Cal. Feb. 27, 2019) (“Plaintiff fails to allege facts showing that either defendant was 17 motivated by her gender or transgender status, or that she was treated differently from other 18 inmates due to her gender or identity as a transgender woman). Moore’s conclusory 19 allegations about the Defendants’ motives are insufficient to state a claim. See Bell Atlantic 20 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (stating that while “detailed factual 21 allegations” are not required, stating a claim “requires more than labels and conclusions, 22 and a formulaic recitation of the elements of a cause of action will not do”). 23 Finally, Moore appears to suggest the “fail[ure] to comply with SB 132” shows 24 discriminatory intent. California Senate Bill 132 was codified in Cal. Penal Code § 2606 25 and states, in relevant part: 26 27 5 RJD, where Moore is incarcerated, houses transgender inmates but does not house cisgender 28 1 (a) An individual incarcerated by the Department of Corrections and Rehabilitation who is transgender, nonbinary, or intersex, regardless of 2 anatomy, shall: 3 . . . .

4 (3) Have their perception of health and safety given 5 serious consideration in any bed assignment, placement, or programming decision within the facility in which they are 6 housed pursuant to paragraph (3) of subdivision (a) or 7 subdivision (b), including, but not limited to, granting single-cell status, housing the individual with another incarcerated person 8 of their choice, or removing the individual or individuals who 9 pose a threat from any location where they may have access to the individual who has expressed a safety concern. 10 11 Cal. Penal Code § 2606. This section, however, does not require transgender inmates 12 receive a single cell classification; rather it directs the CDCR to take an inmate’s gender 13 identity into “serious consideration” when classifying them. Id. And while one of the 14 options referenced is a single cell assignment, other options include assigning the inmate a 15 cellmate of their choice or simply removing any threat to safety posed by specific inmates 16 who may pose a threat. Thus, it is not clear Defendants failed to comply with California 17 Penal Code § 26066 and as such it is insufficient to show discriminatory intent. 18 Therefore, the Court DISMISSES Plaintiff’s equal protection claim for failure to 19 state a claim. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); Iqbal, 556 U.S. at 678. 20 D. Leave to Amend 21 Given Plaintiff’s pro se status, the Court grants her one final opportunity to amend 22 her complaint. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district 23 24 25 6 To the extent that Plaintiff alleges a violation of California Senate Bill 132, the Court notes that a violation of state law or CDCR rules and policies alone is not sufficient to state a claim for relief under 26 Section 1983. See Galen v. County of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007) (“Section 1983 requires [plaintiff] to demonstrate a violation of federal law, not state law.”); see also Elias v. Griffin, 27 2024 WL 4406823, at *9 (C.D. Cal. June 18, 2024) (stating an alleged violation of the “penal code sections that codified California Senate Bill 132” alone is insufficient to § 1983 claim). 28 1 court should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely 2 clear that the deficiencies of the complaint could not be cured by amendment.’”) (quoting 3 Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 4 IV. MOTION FOR TEMPORARY RESTRAINING ORDER 5 Along with her FAC, Plaintiff filed a second TRO motion in which she seeks an 6 order directing Defendants to “cease all attempts to double-cell Plaintiff.7 (Doc. No. 8 at 7 8.) Federal Rule of Civil Procedure 65(b) governs the issuance of a TRO. Such injunctive 8 relief is “an extraordinary remedy that may only be awarded upon a clear showing that the 9 plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 10 (2008) (citation omitted). 11 As with Plaintiff’s previous TRO motion, her current Motion for TRO has been 12 rendered moot because Plaintiff’s FAC has been dismissed for the reasons discussed above. 13 The Court cannot grant Plaintiff injunctive relief because it has no personal jurisdiction 14 over any Defendant at this time. 8 See Fed. R. Civ. P. 65(a)(1), (d)(2); Zepeda v. I.N.S., 753 15 F.2d 719, 727‒28 (9th Cir. 1983); see also Goggin v. Williams, 2025 WL 3034073, at *4 16 (S.D. Cal. Oct. 30, 2025) (denying pro se plaintiff’s TRO as moot where his complaint 17 failed to state a claim and required sua sponte dismissal pursuant to 28 U.S.C. 18 § 1915(e)(2)); Youssef v. Youssef, 2022 WL 5287776, at *3 (S.D. Cal. Oct. 6, 2022) (“Since 19 there is no basis for federal jurisdiction, it would be improper to consider the merits of 20 Plaintiff’s motion for restraining order.”); Olajide v. Brown, 2018 WL 3328227, at *3 21 22 7 The Court again notes that the FAC lacks any specific allegation regarding any attempts by any 23 Defendant to assign her a cellmate. (See Doc. No. 7.) 8 In addition, to obtain a TRO or a preliminary injunction, a plaintiff “must establish that [she] is 24 likely to succeed on the merits, that [he] is likely to suffer irreparable harm in the absence of preliminary 25 relief, that the balance of equities tips in [her] favor, and that an injunction is in the public interest.” Herb Reed Enters., LLC v. Fla. Entm’t Mgmt., Inc., 736 F.3d 1239, 1247 (9th Cir. 2013). And here, because 26 Plaintiff’s FAC fails to state a claim, she has necessarily failed to show a likelihood of success on the merits of her claims, or even a “serious question” as to her claims, to justify preliminary injunctive relief. 27 See Pimental v. Dreyfus, 670 F.3d 1096, 1111 (9th Cir. 2012) (“[A]t an irreducible minimum the moving party must demonstrate a fair chance of success on the merits, or questions serious enough to require 28 1 ||(N.D. Cal. July 6, 2018) (dismissing the complaint and denying the TRO motion as moot). 2 || Therefore, the Court DENIES the TRO Motion (Doc. No. 8) without prejudice as moot. 3 Vv. CONCLUSION AND ORDER 4 Accordingly, the Court: 5 1. DISMISSES Plaintiff's First Amended Complaint in its entirety without 6 || prejudice for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). 7 2. DENIES Plaintiff's Motion for Temporary Restraining Order (Doc. No. 8) 8 || without prejudice as moot. 9 3. GRANTS Plaintiff sixty (60) days leave from the date of this Order in which 10 || to file a Second Amended Complaint which cures the deficiencies of pleading noted in this 11 |;/Order. Plaintiff's Second Amended Complaint must be complete by itself without 12 ||reference to her original Complaint. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. 13 || Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 14 || supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 15 (noting that claims dismissed with leave to amend which are not re-alleged in an amended 16 || pleading may be “considered waived if not repled.”’). 17 If Plaintiff fails to timely file a Second Amended Complaint, the Court will enter a 18 || final Order dismissing this civil action based both on failure to state a claim upon which 19 ||relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(i1) and § 1915A(b)(1), and 20 || failure to prosecute in compliance with a court order requiring amendment. See Lira v. 21 || Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 22 ||the opportunity to fix her complaint, a district court may convert the dismissal of the 23 complaint into dismissal of the entire action.”). 24 IT IS SO ORDERED. 25 Dated: March 26, 2026 © g 26 Hon. Anthony J. attaglia 27 United States District Judge 28 13 a □□