Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SCOTT DESROSIERS, Case No. 26-cv-02111-BAS-DEB 12 Plaintiff, ORDER: 13 v. (1) GRANTING MOTION TO 14 MILDRED GARCIA, et al., PROCEED IN FORMA PAUPERIS (ECF No. 8); AND 15 Defendants.

16 (2) GRANTING IN PART, DISMISSING IN PART 17 COMPLAINT WITHOUT 18 PREJUDICE FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 19 U.S.C. §§ 1915(e)(2)(B) AND 1915A(b) 20 21 For the reasons discussed below, the Court GRANTS IN PART Plaintiff’s amended 22 IFP motion. (ECF No. 8.) The Court also GRANTS IN PART and DISMISSES IN 23 PART, WITHOUT PREJUDICE Plaintiff’s complaint. (ECF No. 1.) For the dismissed 24 claims, Plaintiff is GRANTED LEAVE to file amended claims on or before June 9, 2026. 25 I. INTRODUCTION 26 Plaintiff Scott Desrosiers (“Plaintiff”), a detainee proceeding pro se, has filed a civil 27 rights complaint pursuant to 42 U.S.C. § 1983, along with a motion to proceed in forma 28 pauperis (“IFP”). (See ECF Nos. 1, 2.) The Court denied Plaintiff’s initial IFP motion. 1 (ECF No. 5.) Plaintiff filed an amended IFP motion. (ECF No. 8.) 2 In the Complaint, Plaintiff alleges his constitutional rights were violated when San 3 Diego State University falsified a government investigation and terminated his 4 employment after identifying him as a threat after the investigation. (ECF No. 1.) 5 II. MOTION TO PROCEED IFP 6 Under 28 U.S.C. § 1915, a litigant who because of indigency is unable to pay the 7 required fees or security to commence a legal action may petition the court to proceed 8 without making such payment. The determination of indigency falls within the district 9 court’s discretion. Cal. Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991) 10 (holding that “Section 1915 typically requires the reviewing court to exercise its sound 11 discretion in determining whether the affiant has satisfied the statute’s requirement of 12 indigency”), rev’d on other grounds, 506 U.S. 194 (1993). It is well-settled that a party 13 need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 14 335 U.S. 331, 339–40 (1948). 15 To satisfy the requirements of 28 U.S.C. § 1915(a), “an affidavit [of poverty] is 16 sufficient which states that one cannot because of his poverty pay or give security for costs 17 . . . and still be able to provide himself and dependents with the necessities of life.” Id. at 18 339. At the same time, however, “the same even-handed care must be employed to assure 19 that federal funds are not squandered to underwrite, at public expense . . . the remonstrances 20 of a suitor who is financially able, in whole or in material part, to pull his own oar.” Temple 21 v. Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984). 22 District courts, therefore, tend to reject IFP applications where the applicant can pay 23 the filing fee with acceptable sacrifice to other expenses. See, e.g., Stehouwer v. 24 Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994) (finding that the district court did not 25 abuse its discretion in requiring a partial fee payment from a prisoner who had a $14.61 26 monthly salary and who received $110 per month from family), vacated in part on other 27 grounds by Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). Moreover, “in forma 28 pauperis status may be acquired and lost during the course of litigation.” Wilson v. Dir. of 1 Div. of Adult Insts., No. CIV S-06-0791, 2009 WL 311150, at *2 (E.D. Cal. Feb. 9, 2009) 2 (citing Stehouwer, 841 F. Supp. at 321); see also Allen v. Kelly, 1995 WL 396860, at *2 3 (N.D. Cal. June 29, 1995) (holding that a plaintiff who was initially permitted to proceed 4 in forma pauperis should be required to pay his $120 filing fee out of a $900 settlement). 5 Finally, the facts as to the affiant’s poverty must be stated “with some particularity, 6 definiteness, and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981). 7 Here, although Plaintiff Scott Desrosiers represents that his average monthly income 8 for the past twelve months is $2,900 per month, he states that his current income is 9 approximately $659 per month. (ECF No. 8 at 2–3.) Plaintiff also represents that his total 10 monthly expenses are $2,558 per month. (Id. at 4.) 11 Since Plaintiff’s current monthly salary is significantly below his monthly expenses 12 and he represents he has no significant property assets (id. at 4), Plaintiff’s amended IFP 13 motion is GRANTED. (ECF No. 8.) 14 III. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 15 A. Legal Standard 16 Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the Court must screen a 17 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous, 18 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 19 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 20 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has 21 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 22 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 23 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a 24 complaint “contain sufficient factual matter . . . to state a claim to relief that is plausible on 25 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 26 While detailed factual allegations are not required, “[t]hreadbare recitals of the elements 27 of a cause of action, supported by mere conclusory statements, do not suffice” to state a 28 claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully- 1 harmed me accusation[s]” fall short of meeting this plausibility standard. Id. 2 B. Factual Background 3 Plaintiff Scott Desrosiers is a former employee of San Diego State University 4 (“SDSU”). (ECF No. 1 ¶ 4.) While working as an “Electro-Mechanical Tech 2,” Plaintiff 5 was “tasked with maintaining electro-mechanical equipment in laboratory facilities and 6 classrooms serving the Doctor of Physical Therapy program, including the Bhutani Lab 7 and related spaces in the PSF A building complex.” (Id. ¶ 16.) While employed, Plaintiff 8 observed and documented alleged California Division of Occupational Safety and Health 9 (“CalOSHA”) safety code violations in his assigned laboratory facilities and classrooms. 10 (Id. ¶ 19.) 11 As best at the Court can discern, Plaintiff alleges facts against each Defendant as 12 follows: 13 1. SDSU and California State University (“CSU”) Defendants 14 (collectively, “University Defendants”) 15 Kirk Campbell (“Campbell”) is a supervisor at SDSU, who allegedly told Plaintiff 16 not to safety concerns with students, coworkers, or administrators. Campbell told Plaintiff 17 to submit all safety complaints exclusively to Campbell’s “leads” who were required to 18 sign off before any complaint could be submitted. (Id. ¶ 27.) Campbell, along with 19 Defendants Terry Williams and Nathan Doherty (below), allegedly participated in placing 20 Plaintiff on administrative leave on March 21, 2024, less than twenty-four hours after 21 Plaintiff threatened a lawsuit. (Id. ¶ 71.) 22 Defendant Terry Williams (“Williams”) is an Employee Resource Manager at 23 SDSU. (Id. ¶ 8.) Williams, along with Defendant Nathan Doherty, reviewed Plaintiff’s 24 six-month evaluation at a meeting on March 21, 2024, with Plaintiff. (Id. ¶¶ 37–38.) This 25 evaluation contained adverse marks primarily tied to Plaintiff’s safety advocacy. (Id. ¶¶ 26 37–38.) Plaintiff reiterated his safety concerns at the meeting and said he would file a civil 27 rights action if SDSU did not correct the violations and the retaliatory evaluation. (Id. ¶¶ 28 38–39.) Plaintiff was placed on administrative leave 24 hours later. (Id.) 1 Defendant Nathan Doherty (“Doherty”) is a Labor Relations Manager at SDSU. (Id. 2 ¶ 8.) He participated in the evaluation meeting discussed above. In addition, on the same 3 day Plaintiff was placed on administrative leave, Doherty met with Plaintiff to discuss an 4 allegation that Plaintiff had threatened a co-worker with a deadly weapon (a multi-tool). 5 (Id. ¶¶ 41–46.) Doherty allegedly compelled Plaintiff to respond to the deadly weapon 6 claim under threat of termination. (Id. ¶ 44.) 7 Defendant Jessica Rentto (“Rentto”) is Associate Vice President of Business and 8 Finance at SDSU, which allegedly carries direct institutional responsibility for campus 9 health and safety. (Id. ¶¶ 13, 33.) The Chancellor’s Office allegedly appointed Rentto as 10 the investigator of Plaintiff’s whistleblower complaint. (Id. ¶ 29.) Plaintiff met with Rentto 11 and provided a full account of safety violations, to which Rentto responded she would look 12 into them. (Id. ¶ 32.) 13 Defendant Mildred Garcia (“Garcia”) is the Chancellor of the California State 14 University system (id. ¶ 5), and Adela De la Torre (“De la Torre”) is the President of SDSU 15 (id. ¶ 6). Without more detail, Plaintiff alleges Garcia and De la Torre are liable in their 16 individual capacities to the extent they personally participated in, directed, ratified, or 17 knowingly failed to stop the unconstitutional acts alleged. (Id. ¶ 68.) They are also sued 18 in their official capacity for inaccurate CSU and SDSU personnel and employment records. 19 (Id. ¶ 98.) 20 2. California Division of Occupational Safety and Health 21 (“CalOSHA”) Defendants (collectively, “CalOSHA Defendants”) 22 Defendant Mark Katz (“Katz”) is a CalOSHA Associate Safety Engineer who 23 conducted an investigation into Plaintiff’s formal CalOSHA complaint. (Id. ¶¶ 11, 47). 24 Plaintiff claims Katz disclosed Plaintiff’s identity as complainant in an ex parte opening 25 conference with SDSU representatives. (Id. ¶ 47.) SDSU terminated Plaintiff’s 26 employment several days after Plaintiff was identified as the safety complainant. (Id. ¶ 27 48.) By departing the April without conducting an inspection, Katz allegedly had given 28 1 SDSU advanced notice the inspection scope so that when he returned two weeks later, he 2 entered an official conclusion of “no evidence of violations.” (Id. ¶¶ 56–57, 75.) 3 Defendant Tim Decker (“Decker”) is the CalOSHA Acting District Manager 4 allegedly responsible for oversight of district-level investigations like the one engendered 5 by Plaintiff. (Id. ¶ 12) Decker allegedly approved of Katz’s official conclusion of “no 6 evidence of violations” and “supervised both the initial” and “the follow-up enforcement 7 inspection.” (Id. ¶¶ 57, 65.) 8 Defendant Debra Lee (“Lee”) is the Chief of the California Division of Occupational 9 Safety and Health (“CalOSHA”). (Id. ¶ 10.) 10 Defendant Brandon Hart (“Hart”) is the CalOSHA Regional Manager allegedly 11 responsible for the oversight of district-level investigations like the one reported by 12 Plaintiff. (Id. ¶ 14.) Hart allegedly denied Plaintiff an informal review and written 13 statement of reasons for the final disposition of his complaint. (Id. ¶ 62.) 14 C. Count 1: 42 U.S.C. § 1983; First Amendment Retaliation Against 15 Defendants Garcia, De la Torre, Campbell, Williams, Doherty, Rentto, Katz, and 16 Decker in Their Individual Capacities 17 To state a claim under § 1983 for government retaliation against Plaintiff’s exercise 18 of his First Amendment rights, Plaintiff must allege that: 19 (1) Plaintiff engaged in constitutionally protected activity; 20 (2) Defendants’ actions would “chill a person of ordinary firmness” from continuing 21 to engage in the protected activity; and 22 (3) the protected activity was a substantial motivating factor in the defendant’s 23 conduct—i.e., that there was a nexus between the defendant’s actions and an 24 intent to chill speech. 25 Arizona Students’ Ass’n v. Arizona Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016). 26 Specifically, “[i]n order to state a claim against a government employer for violation 27 of the First Amendment, an employee must show (1) that he or she engaged in protected 28 speech; (2) that the employer took ‘adverse employment action’; and (3) that his or her 1 speech was a ‘substantial or motivating’ factor for the adverse employment action.” 2 Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003). An “adverse employment 3 action” is an act that is reasonably likely to deter employees from engaging in 4 constitutionally protected speech, including firing current and former government 5 employees for their public disclosure of health and safety hazards. Id. at 973–77. 6 Here, Plaintiff claims the above Defendants in the title of this subsection had 7 retaliated against Plaintiff for airing safety grievances by engaging in conduct resulting in 8 the termination of Plaintiffs’ employment. (ECF No. 1 ¶¶ 67–77.) 9 First, the Court finds Plaintiff has alleged protected speech (i.e., speech as a private 10 citizen directed at a matter of public concern, here, Plaintiff’s safety complaint regarding a 11 public university’s compliance with federal safety regulations), an adverse employment 12 action (i.e., employment termination), and that his allegedly protected speech motivated 13 that adverse employment action by Campbell (i.e., poor three-month performance review 14 in response to safety complaints and placing Plaintiff on administrative leave) (id. ¶¶ 27, 15 71), Williams and Doherty (i.e., poor six-month performance review in response to safety 16 complaints) (id. ¶¶ 37–40), and Rentto (i.e., did not review retaliatory evaluation process 17 after CalOSHA complaint despite alleged knowledge and assigned responsibility to do so) 18 (id. ¶¶ 29, 34). 19 Second, though Plaintiff has alleged Katz falsified the CalOSHA investigation and 20 had revealed Plaintiff’s identity to University Defendants as a CalOSHA safety 21 complainant, the Court finds Plaintiff has failed to allege Katz had an “intent to chill 22 speech” or that there was a nexus between Katz’s actions and any such intent. Arizona 23 Students’ Ass’n, 824 F.3d at 867. The latter is required to assert retaliation claims against 24 non-employer government actors. Id. 25 Third, Plaintiff has not alleged specific actions taken by remaining University 26 Defendants (Garcia and De la Torre), or by remaining CalOSHA Defendants (Decker, Lee, 27 and Hart), that were taken in retaliation against Plaintiff. 28 1 2 3 Thus, the Court GRANTS IN PART Plaintiff’s cause of action for First 4 Amendment retaliation (Count 1) to the extent Plaintiff alleges Campbell, Williams, 5 Doherty, and Rentto. However, the Court DISMISSES IN PART, WITHOUT 6 PREJUDICE Plaintiff’s First Amendment retaliation claims against Katz, Garcia, De la 7 Torre, Decker, Lee, and Hart (Count 1). 8 D. Count 2: 42 U.S.C. § 1983; Substantive Due Process Violation Against 9 Defendants Garcia, De la Torre, Campbell, Williams, Doherty, and Rentto in Their 10 Individual Capacities 11 “[D]eliberate indifference on the part of the responsible official, to the safety of 12 employees in the presence of known danger, created by official conduct, is sufficient to 13 establish a due process violation under Section 1983 for injury caused in part by a state 14 created danger.” L.W. v. Grubbs, 92 F.3d 894, 896 (9th Cir. 1996) (citing L.W. v. Grubbs, 15 974 F.2d 119, 122–23 (9th Cir. 1992) and Wood v. Ostrander, 879 F.2d 583, 588 (9th 16 Cir.1989), cert. denied, 498 U.S. 938 (1990)). 17 “The ‘danger creation’ basis for a claim . . . necessarily involves affirmative conduct 18 on the part of the state in placing the plaintiff in danger.” L.W., 974 F.2d at 121. Plaintiffs 19 can bring § 1983 claims against government employers based on employment issues, 20 including cases concerning employees suing supervisors in § 1983 actions for workplace 21 injuries. See, e.g., L.W., 92 F.3d 894 (state created danger where employee with history of 22 sexual assault was promoted to supervise plaintiff, leading to plaintiff being assaulted); 23 Figueroa v. United States, 7 F.3d 1405 (9th Cir. 1993) (state created danger where 24 defendants ordered plaintiff to clean up toxic chemical spill without advising them on 25 proper safety procedures, leading to explosion injuring plaintiff). 26 However, substantive due process does not create a duty on the part of a government 27 employer to provide its employees with a safe work environment. Pauluk v. Clark Cnty. 28 Health Dist., No. 207CV01681PMPLRL, 2008 WL 11335017, at *4 (D. Nev. June 30, 1 2008) (citing Collins v. City of Harker Heights, Tex., 503 U.S. 115, 126 (1992)). It also 2 does not impose an affirmative obligation to ensure minimal levels of safety and security. 3 Collins, 503 U.S. at 129. “Nor does it guarantee municipal employees a workplace that is 4 free of unreasonable risks of harm.” Id. An employer’s failure to warn or train its 5 employees about known hazards in the workplace does not support a substantive due 6 process claim. Id. The Due Process Clause should not be interpreted “to impose federal 7 duties that are analogous to those traditionally imposed by state tort law.” Id. at 128. 8 Thus, to allege a claim for state created danger beyond failure to provide a safe work 9 environment, plaintiffs must allege that defendant(s) had ordered plaintiffs to perform tasks 10 that defendant(s) knew were unsafe. See, e.g., Figueroa, 7 F.3d at 1409 (defendants’ 11 ordering the employees to clean up the spill constituted affirmative conduct, or a 12 commission rather than an omission); Sherwood v. Oklahoma County, 42 Fed.Appx. 353, 13 356 (10th Cir. 2002) (defendant is independently aware of health risks of working with 14 toxic paint in an unventilated area and ordered the employee to perform the tasks 15 Here, though Plaintiff states Plaintiff’s job duties included working in areas some 16 Defendants were aware could be non-compliant with state safety standards and that 17 Plaintiff was penalized for refusing to perform those duties (ECF No. 1 ¶¶ 25, 27, 32, 37– 18 38, 80–82), Plaintiff has not alleged that any particular Defendant ordered Plaintiff to 19 conduct any specific hazardous task. Indeed, Plaintiff’s allegations that “SDSU 20 supervisors” had continued to assign Plaintiff certain tasks after Plaintiff raised safety 21 concerns (see ECF No. 1 ¶ 80) ring closer to a claim that Defendants failed to maintain 22 “minimal levels of safety and security,” Collins, 503 U.S. at 129, than to a claim that 23 Defendants’ “affirmative conduct” placed Plaintiff in danger, Figueroa, 7 F.3d at 1409. 24 Thus, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s substantive due 25 process cause of action based on a state created danger (Count 2). (ECF No. 1.) 26 E. Count 3: 42 U.S.C. § 1983; Procedural Due Process Violation Against 27 Defendants Garcia, De la Torre, Campbell, Williams, Doherty, and Rentto in Their 28 Individual Capacities 1 To establish a procedural due process claim under Section 1983, a plaintiff must 2 show: “(1) a liberty or property interest protected by the Constitution; (2) a deprivation of 3 the interest by the government; and (3) lack of process.” Guatay Christian Fellowship v. 4 Cty. of San Diego, 670 F.3d 957, 983 (9th Cir. 2011). 5 An employer can be held liable for a “procedural due process violation” when 6 terminating an employee after the employer makes a stigmatizing charge that might 7 seriously damage the employee’s standing. Campanelli, 100 F.3d at 1478. “A public 8 employee ‘must be given an opportunity to refute’ a stigmatizing charge.” Mustafa, 157 9 F.3d at 1179. 10 Here, Plaintiff claims that University Defendants deprived Plaintiff of procedural 11 due process and, on the basis of a stigmatizing charge of violent-threat, escorted Plaintiff 12 off of SDSU’s campus by SDSU police. 13 Regarding this incident, the Court finds that Plaintiff has alleged a “lack of process,” 14 Guatay Christian Fellowship, 670 F.3d at 983, since Plaintiff alleges Doherty had 15 requested a meeting on the same day Plaintiff was escorted off-campus and since Doherty 16 did not provide Plaintiff with a reason for the meeting prior to then (see ECF No. 1 ¶¶ 41– 17 46). Guzman v. County of Maui, No. 21-CV-00202-DKW-RT, 2021 WL 4597656, at *7 18 (D. Haw. Oct. 6, 2021) (“[A]lthough Guzman undoubtedly received a hearing both before 19 the Mayor and the Council, on the current record, he was provided with no meaningful 20 notice of the reason for those hearings. Many undisputed facts lead to this conclusion.”). 21 On the other hand, the Court finds that Plaintiff does not assert procedural due 22 process claims based on a “stigmatizing charge” against Garcia, De la Torre, Campbell, 23 Williams, and Rentto, given that Plaintiff has not alleged how any of those Defendants 24 were involved in the particular incident above. 25 As such, the Court GRANTS IN PART Plaintiff’s procedural due process cause of 26 action based on a “stigmatizing charge” against Doherty. However, the Court 27 DISMISSES IN PART, WITHOUT PREJUDICE Plaintiff’s procedural due process 28 1 cause of action based on a “stigmatizing charge” against remaining University Defendants 2 (Garcia, De la Torre, Campbell, Williams, and Rentto). 3 F. Count 4: 42 U.S.C. § 1983 and First and Fourteenth Amendment Against 4 Defendants Garcia and De la Torre in Their Official Capacities; Against Defendants 5 Lee and Hart in Their Official Capacities; Prospective Relief 6 Plaintiff seeks prospective relief on the basis that “[t]he ongoing presence of a false 7 and stigmatizing charge in Plaintiff’s official employment record, and the ongoing 8 presence of a materially false official CalOSHA inspection record” constitute “continuing 9 violations of Plaintiff’s rights under the First and Fourteenth Amendments.” (ECF No. 1 10 ¶ 100.) 11 However, the Court first finds that the ongoing presence of a stigmatizing claim on 12 Plaintiff’s employee record alone is not protected by the Fourteenth Amendment. “[T]he 13 liberty interests protected by the Fourteenth Amendment are implicated only when the 14 government’s stigmatizing statements effectively exclude the employee completely from 15 her chosen profession.” Blantz v. California Dep’t of Corr. & Rehab., Div. of Corr. Health 16 Care Servs., 727 F.3d 917, 925 (9th Cir. 2013). Stigmatizing statements that merely cause 17 “reduced economic returns and diminished prestige, but not permanent exclusion from, or 18 protracted interruption of, gainful employment within the trade or profession” do not 19 constitute a deprivation of liberty. Stretten v. Wadsworth Veterans Hosp., 537 F.2d 361, 20 366 (9th Cir. 1976); see also Roth v. Veteran’s Admin., 856 F.2d 1401, 1411 (9th Cir. 21 1988), overruled on other grounds by Garcetti v. Ceballos, 547 U.S. 410 (2006). “[P]eople 22 do not have liberty interests in a specific employer.” Llamas v. Butte Cmty. Coll. Dist., 23 238 F.3d 1123, 1128 (9th Cir. 2001). Here, Plaintiff has not alleged that the stigmatizing 24 claims on Plaintiff’s employee record have prevented Plaintiff from seeking future 25 employment as a technician. For example, Plaintiff has not alleged that Plaintiff has 26 attempted to apply for technician work and was rejected based on the relevant employee 27 record. 28 1 Moreover, the Court finds Plaintiff does not have a constitutionally protected liberty 2 interest in official government records, like “official CalOSHA inspection record[s]” (ECF 3 No. 1 ¶ 100). See Saldivar v. Wright, No. 2:20-CV-02081-CAS-PD, 2021 WL 6618553, 4 at *5 (C.D. Cal. Sept. 8, 2021) (“There is no stand-alone constitutional right to, or liberty 5 interest, in accurate government records.”); see also Spencer v. Peters, 857 F.3d 789, 798 6 (9th Cir. 2017) (“[F]abricated evidence does not give rise to a claim if the plaintiff cannot 7 ‘show the fabrication actually injured her in some way.’ ”). 8 Thus, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s cause of action 9 for prospective relief (Count 4). (ECF No. 1.) 10 G. Leave to Amend 11 Given Plaintiff’s pro se status, the Court grants him leave to amend his complaint. 12 See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not 13 dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear that the 14 deficiencies of the complaint could not be cured by amendment.’ ”) (quoting Akhtar v. 15 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). 16 IV. CONCLUSION 17 For the reasons above, the Court GRANTS Plaintiff’s motion to proceed IFP. (ECF 18 No. 8.) Moreover, the Court GRANTS IN PART and DISMISSES IN PART, 19 WITHOUT PREJUDICE Plaintiff’s complaint. (ECF No. 1.) 20 More specifically, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s 21 substantive due process cause of action based on a state created danger (Count 2) and 22 Plaintiff’s cause of action for prospective relief (Count 4). 23 Next, the Court GRANTS IN PART Plaintiff’s cause of action for First Amendment 24 retaliation (Count 1) to the extent Plaintiff alleges Campbell, Williams, Doherty, and 25 Rentto. On the other hand, the Court DISMISSES IN PART, WITHOUT PREJUDICE 26 Plaintiff’s First Amendment retaliation claims against Katz, Garcia, De la Torre, Decker, 27 Lee, and Hart (Count 1). 28 Lastly, the Court GRANTS IN PART Plaintiff’s procedural due process cause of 1 action based on a “stigmatizing charge” against Doherty (Count 3). However, the Court 2 || DISMISSES IN PART, WITHOUT PREJUDICE Plaintiff's procedural due process 3 cause of action based on a “stigmatizing charge” against Garcia, De la Torre, Campbell, 4 || Williams, and Rentto (Count 3). 5 For the dismissed claims, Plaintiff is GRANTED LEAVE to file amended claims 6 or before June 10, 2026. 7 IT IS SO ORDERED. 8 ~ 9 || DATED: May 27, 2026 (yatta Bahar □□ 10 H n. Cynthia Bashant, Chief Judge United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 —412_