Opinion

1 2

6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8

9 SCOTT DESROSIERS, Case No. 26-cv-02111-BAS-DEB 10 Plaintiff, ORDER: 11 v. (1) SCREENING PLAINTIFF’S 12 MILDRED GARCIA, et al., AMENDED COMPLAINT 13 (ECF No. 12); Defendants.

14 (2) GRANTING PLAINTIFF’S 15 MOTION FOR U.S. MARSHAL SERVICE (ECF No. 14); 16 17 (3) DENYING PLAINTIFF’S EX PARTE TRO APPLICATION 18 (ECF No. 16); 19 (4) GRANTING PLAINTIFF’S 20 MOTION TO EXTEND TIME 21 FOR SERVICE OF PROCESS (ECF No. 18); AND 22 23 (5) GRANTING PLAINTIFF’S MOTION TO 24 ELECTRONICALLY FILE 25 (ECF No. 19)

26 Presently before the Court are Plaintiff Scott Desrosiers’s motions, including: (1) 27 Amended Complaint (ECF No. 12); (2) Application for a U.S. Marshal to Effect Service 28 (ECF No. 14) (“Service Motion”); (3) Ex Parte Application for TRO and Related Relief 1 (ECF No. 16) (“Ex Parte TRO Application”); (4) Motion to Extend Time for Service of 2 Process (ECF No. 18); and (5) Motion to Electronically File (ECF No. 19). 3 For the reasons below, the Court DISMISSES WITH PREJUDICE, IN PART 4 Plaintiff’s Amended Complaint. (ECF No. 12.) Additionally, the Court DENIES 5 Plaintiff’s Ex Parte TRO Application. (ECF No. 16.) However, the Court GRANTS 6 Plaintiff’s Service Motion, Motion to Extend Time for Service of Process, and Motion to 7 Electronically File. (ECF Nos. 14, 18, 19.) 8 I. DISCUSSION 9 A. Screening Amended Complaint (ECF No. 12) 10 On April 3, 2026, Plaintiff filed his original Complaint against Defendants Kirk 11 Campbell (“Campbell”), Terry Williams (“Williams”), Nathan Doherty (“Doherty”), 12 Jessica Rentto (“Rentto”), Mildred Garcia (“Garcia”), Adela De la Torre (“De la Torre”), 13 Mark Katz (“Katz”), Tim Decker (“Decker”), Debra Lee (“Lee”), and Brandon Hart 14 (“Hart”). (ECF No. 1.) The Court partially dismissed Plaintiff’s Complaint without 15 prejudice. (ECF No. 11.) Plaintiff filed an Amended Complaint. (ECF No. 12.) 16 The Court now screens Plaintiff’s Amended Complaint, pursuant to 28 U.S.C. 17 §§ 1915(e)(2)(B) and 1915A(b). The Court does not rehash the factual background or legal 18 standards previously discussed at length in its prior screening Order. (ECF No. 11.) 19 1. Count 1: 42 U.S.C. § 1983 - First Amendment Retaliation Against 20 Defendants Garcia, De la Torre, Campbell, Williams, Doherty, Rentto, 21 Katz, Decker, and DOE 1 in Their Individual Capacities 22 First, the Court finds that Plaintiff’s claims against Campbell, Williams, Doherty, 23 Rentto, and Katz survive for the same reasons discussed in its prior Order. (ECF No. 11 at 24 7:9–8:1.) For the same reasons, the Court also permits Plaintiff’s claims against Defendant 25 DOE 1, since Plaintiff has alleged DOE 1 participated in the policy restricting Plaintiff’s 26 ability to discuss his safety concerns to others at SDSU alongside Williams. (ECF No. 12 27 ¶ 79.) 28 1 Second, the Court now finds that Plaintiff’s First Amendment retaliation claims 2 against Garcia survive. Plaintiff now alleges that Garcia has declined independent review 3 of an EO 1116 complaint, appointed Rentto as the investigator of Plaintiff’s whistleblower 4 complaint, and required Plaintiff to disclose his confidential whistleblower complaint to 5 rebut his performance evaluation. (ECF No. 12 ¶ 84.) 6 Third, the Court DISMISSES WITH PREJUDICE Plaintiff’s claims in Count 1 7 against Decker and De la Torre. (ECF No. 12.) Plaintiff makes no new allegations with 8 respect to Decker. Plaintiff’s Count 1 claims against Defendant Decker are dismissed for 9 the same reasons discussed in this Court’s prior Order. (ECF No. 11 at 8:21–25.) Next, 10 though Plaintiff adds when De la Torre assumed SDSU presidency relative to the 11 publication of a report documenting safety violations (ECF No. 12 ¶ 36), Plaintiff still fails 12 to allege that De la Torre conducted any specific retaliatory acts (ECF No. 11 at 8:21–25). 13 2. Count 2: 42 U.S.C. § 1983; Substantive Due Process Violation 14 Against Defendants Campbell, Williams, Doherty, and Rentto in Their 15 Individual Capacities 16 The Court previously dismissed the Count 2 claim because Plaintiff had failed to 17 allege that any Defendants ordered Plaintiff to perform a hazardous task that they knew 18 was hazardous. (ECF No. 11 at 10:11–21.) However, here, Plaintiff has alleged that 19 Campbell directed Plaintiff to perform tasks in areas with dangerous chemicals and 20 Plaintiff had nearly asphyxiated while performing those tasks. (ECF No. 12 ¶ 91.) Thus, 21 the Court permits Plaintiff’s claim against Campbell to proceed. 22 On the other hand, given that Plaintiff has failed to allege any specific directives to 23 perform hazardous tasks by Williams, Doherty, and Rentto as required by the state-created 24 danger doctrine, the Court DISMISSES WITH PREJUDICE Plaintiff’s Count 2 claim 25 against those Defendants. (ECF No. 12.) 26 3. Count 3: 42 U.S.C. § 1983; Substantive Due Process Violation 27 Against Defendants Garcia, De la Torre, Campbell, Williams, Doherty, 28 and Rentto in Their Individual Capacities 1 The Court previously permitted Plaintiff’s Count 3 claim against Defendant Doherty 2 to proceed, since Plaintiff alleged Doherty escorted Plaintiff off-campus after accusing him 3 of dangerous actions against other employees and without providing Plaintiff adequate 4 notice of a meeting to challenge Doherty’s allegations. (ECF No. 11 at 11:9–16.) The 5 Court permits Plaintiff’s Count 3 claim in his Amended Complaint to proceed against 6 Doherty for the same reasons in its prior Order. (Id. at 10:22–11:25.) 7 Plaintiff’s Amended Complaint now includes allegations that Williams participated 8 in the late-notice meeting that Doherty had levied accusations against Plaintiff; and that 9 Campbell and Williams coordinated the meeting. (ECF No. 12 ¶¶ 43, 105.) Thus, the 10 Court also permits Plaintiff’s Count 3 claim against Campbell and Williams to proceed. 11 However, the Court DISMISSES WITH PREJUDICE Plaintiff’s Count 3 claim 12 against Defendants Garcia, De la Torre, and Rentto. (ECF No. 12.) Plaintiff still fails to 13 allege any affirmative action taken by those Defendants to deprive Plaintiff of adequate 14 due process to challenge Plaintiff’s stigmatizing charge. 15 4. Count 4: 42 U.S.C. § 1983 - First and Fourteenth Amendments 16 Prospective Relief- Ex parte Young Against Defendants Garcia and De la 17 Torre in Their Official Capacities; Against Defendants Lee and Hart in 18 Their Official Capacities 19 Plaintiff’s Amended Complaint still fails to allege that Plaintiff has been “effectively 20 exclude[ed] from his chosen profession,” Blantz v. California Dep’t of Corr. & Rehab., 21 Div. of Corr. Health Care Servs., 727 F.3d 917, 925 (9th Cir. 2013), because of the 22 stigmatizing charge. 23 In addition, Plaintiff’s new theory that false records constitute denial of access to 24 courts because it would prevent Plaintiff from bringing claims in state court fails. In the 25 Ninth Circuit, to state a right to access claim, a plaintiff must allege that “defendants’ 26 cover-up violated their right of access to the courts by rendering ‘any available state court 27 remedy ineffective.’ ” Delew v. Wagner, 143 F.3d 1219, 1223 (9th Cir. 1998) (quoting 28 Swekel v. City of River Rouge, 119 F.3d 1259, 1264 (6th Cir. 1997)). 1 Plaintiff has not tied the allegedly false records to any particular legal claim he would 2 bring in state court; nor has Plaintiff alleged how the allegedly false records would preclude 3 him from any available state remedy. (ECF No. 12 ¶ 113.) 4 Thus, the Court DISMISSES WITH PREJUDICE Plaintiff’s Count 4 claim for the 5 same reasons in its prior Order (ECF No. 11 at 11:26–13:2). (ECF No. 12.) 6 B. Application for Marshal to Effect Service (ECF No. 14) 7 Plaintiff moves for the Court to direct the U.S. Marshal to effect service of his 8 Complaint (ECF No. 1). (ECF No. 14.) Given that Plaintiff is proceeding in forma 9 pauperis, the Court can direct the U.S. Marshal to conduct service on his behalf. See 28 10 U.S.C. § 1915(d) ( “The officers of the court shall issue and serve all process, and perform 11 all duties in [in forma pauperis] cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order 12 that service be made by a United States marshal or deputy marshal ... if the plaintiff is 13 authorized to proceed in forma pauperis under 28 U.S.C. § 1915 . . . .”); Stewart v. De Paul, 14 No. 12-CV-642-BEN KSC, 2012 WL 1610075, at *2 (S.D. Cal. May 8, 2012) (directing 15 the same). 16 Thus, the Court GRANTS Plaintiff’s Service Motion in accordance with the 17 instructions in the Conclusion of this Order. (ECF No. 14.) 18 C. Motion to Extend Time for Service of Process Pursuant to Fed. R. Civ. P. 19 4(m) (ECF No. 18) 20 Given that the Court delayed resolving Plaintiff’s Service Motion for one week, 21 Plaintiff requests an extension of time for service of process. The Court exercises its 22 inherent discretion to control its docket to GRANT Plaintiff’s request for extension of 23 service to September 15, 2026. See Fed. R. Civ. P. 4(m); Hernandez v. City of El Monte, 24 138 F.3d 393, 398 (9th Cir. 1998) (“District courts have inherent power to control their 25 dockets”); In re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001) (A district court has full 26 discretion to extend the time for service of process upon a showing of good cause pursuant 27 to Rule 4(m)). 28 D. Ex Parte TRO Application (ECF No. 16) 1 Plaintiff moves for emergency relief to prevent Katz from conducting investigations 2 on behalf of the California Division of Occupational Safety and Health. (ECF No. 16.) 3 To show he has standing to pursue injunctive relief, Plaintiff must “demonstrate that 4 he has suffered or is threatened with a ‘concrete and particularized’ legal harm, coupled 5 with a ‘sufficient likelihood that he will again be wronged in a similar way.’ ” Lujan v. 6 Defenders of Wildlife, 504 U.S. 555, 560 (1992); City of Los Angeles v. Lyons, 461 U.S. 7 95, 111 (1983). The latter inquiry turns on whether Plaintiff has a “real and immediate 8 threat of repeated injury.” Id. The threat of future injury cannot be “conjectural or 9 hypothetical” but must be “certainly impending” to constitute an injury in fact for 10 injunctive relief purposes. Davidson v. Kimberly Clark, 889 F.3d 956, 967 (9th Cir. 2018). 11 Plaintiff has not demonstrated how he in particular faces a threat of repeated injury 12 from Defendant Katz’s investigatory activities. Namely, Plaintiff does not explain how 13 Defendant Katz’s continued investigatory activities in other investigations relate to “[t]he 14 falsified record of Investigation No. 1740506” which purportedly “continues to damage 15 [Plaintiff’s] reputation.” (ECF No. 16 at 10:13–18.) Thus, Plaintiff lacks standing to bring 16 a claim for injunctive relief against Katz. 17 As such, the Court DENIES Plaintiff’s Ex Parte TRO Application (ECF No. 16), 18 since Plaintiff has not alleged how Katz’s investigation activities continue to affect Plaintiff 19 personally. 20 E. Motion for Leave to File Electronically (ECF No. 19) 21 Before the Court is Plaintiff’s ex parte motion for permission to use the CM/ECF 22 filing system in accordance with ECF Administrative Policies and Procedures 23 (ECF No. 19). Plaintiff has sufficiently stated he has access to the necessary equipment 24 and software capabilities to electronically file documents. (Id.) 25 The Court therefore GRANTS Plaintiff’s motion for leave to electronically file 26 (ECF No. 19). Cf. In re Cisse, No. 20-cv-1694-BAS-WVG, 2020 WL 6561426, at *1 (S.D. 27 Cal. Nov. 9, 2020). Plaintiff must register as a user with the Clerk’s Office and as a 28 subscriber to PACER within seven days of this Order on July 1, 2026. 1 II. CONCLUSION 2 For the reasons above, the Court DISMISSES WITH PREJUDICE, IN PART 3 Plaintiff’s Amended Complaint. (ECF No. 12.) More specifically, the Court DISMISSES 4 WITH PREJUDICE: 5 1. Plaintiff’s Count 1 cause of action against Defendants Tim Decker and Adela De la 6 Torre; 7 2. Plaintiff’s Count 2 cause of action against Defendants Terry Williams, Nathan 8 Doherty, and Jessica Rentto; 9 3. Plaintiff’s Count 3 cause of action against Defendants Mildred Garcia, Adela De la 10 Torre, and Jessica Rentto; and 11 4. Plaintiff’s Count 4 cause of action against all Defendants. 12 Additionally, the Court DENIES Plaintiff’s Ex Parte TRO Application. (ECF No. 13 16.) However, the Court GRANTS Plaintiff’s Service Motion, Motion to Extend Time for 14 Service of Process, and Motion to Electronically File. (ECF Nos. 14, 18, 19.) 15 Regarding U.S. Marshal service, the Court: 16 1. DIRECTS the Clerk of the Court to terminate Defendants Tim Decker, Adela De 17 la Torre, Debra Lee, and Brandon Hart as parties to this matter based on Plaintiff’s 18 failure to state a claim against them, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). 19 2. DIRECTS the Clerk of the Court to issue a summons as to Plaintiff’s Amended 20 Complaint (ECF No. 12) upon remaining Defendants Kirk Campbell, Terry 21 Williams, Nathan Doherty, Jessica Rentto, Mildred Garcia, and Mark Katz, and to 22 forward it to Plaintiff along with a blank U.S. Marshal Form 285. In addition, the 23 Clerk will provide Plaintiff with certified copies of this Order, Plaintiff’s Amended 24 Complaint (ECF No. 12), and the summons so that he may serve remaining 25 Defendants Kirk Campbell, Terry Williams, Nathan Doherty, Jessica Rentto, 26 Mildred Garcia, and Mark Katz. Upon receipt of this “IFP Package,” Plaintiff is 27 directed to complete the Form 285s as completely and accurately as possible, include 28 an address where service upon Defendants Kirk Campbell, Terry Williams, Nathan 1 Doherty, Jessica Rentto, Mildred Garcia, and Mark Katz is to be made, see S.D. Cal. 2 CivLR 4.1(c), and return them to the USMS according to the instructions provided 3 by the Clerk in the letter accompanying his IFP Package. 4 3. ORDERS the USMS to serve a copy of the Amended Complaint (ECF No. 12) 5 and summons upon all Defendants as directed by Plaintiff on the U.S. Marshal Form 6 285 and to promptly file proof of that service, or proof of any attempt at service, 7 with the Clerk of Court. See S.D. Cal. CivLR 5.2. All costs of service will be 8 advanced by the United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 9 4. ORDERS each Defendant, once served, to reply to Plaintiff's Amended 10 Complaint (ECF No. 12) within the time provided by the applicable provisions of 11 Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (“The Court 12 may require any defendant to reply to a complaint brought under this section if it 13 finds that the plaintiff has a reasonable opportunity to prevail on the merits.’’). 14 5. ORDERS Plaintiff to serve upon remaining Defendants Kirk Campbell, Terry 15 Williams, Nathan Doherty, Jessica Rentto, Mildred Garcia, and Mark Katz or, if 16 appearance has been entered by counsel, upon remaining Defendants’ counsel, a 17 copy of every further pleading or other document submitted for consideration of the 18 Court. Plaintiff must also include with the original filing with the Clerk of the Court 19 a certificate stating the manner in which a true and correct copy of the filing was 20 also served on remaining Defendants, or counsel for remaining Defendants, and the 21 date of such service. Any paper received by the Court that has not been filed with 22 the Clerk or that fails to include a Certificate of Service may be disregarded. 23 IT IS SO ORDERED. 24 ~ 25 ||DATED: June 24, 2026 (yatta Bahar □□ 6 H n. Cynthia Bashant, Chief Judge United States District Court 27 28 92