Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 Case No.: 26-cv-00346-DMS-MSB 9 LARRY SWADENER, 10 Plaintiff, ORDER 11 v. (1) GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA CITY OF ESCONDIDO et al., 12 PAUPERIS; ( 2 ) S C R E E N I N G C O M P L A I NT; 13 Defendants. (3) DENYING MOTION TO 14 APPOINT COUNSEL; AND (4) DENYING REQUEST FOR 15 CONSOLIDATION 16 17 On January 21, 2026, Plaintiff Larry Swadener, proceeding pro se, filed this action 18 against the City of Escondido (“the City”), Escondido City Attorney Michael McGuinness, 19 Escondido Police Department (“EPD”), Escondido Interim Police Chiefs Erik Witholt and 20 Ryan Banks, San Diego County Sheriff Kelly A. Martinez, San Diego County Sheriff’s 21 Department, Escondido Post-Tow Hearing Officer Joseph Mata, Escondido Police 22 Detective Chris Naranjo, Escondido Police Officer Vea, Escondido Arresting Police 23 Officers of 6/21/2025, Escondido Transportation Police Officer of 6/22/2025, All 24 Previously Named Defendants in Southern District Court Case Number 3:24-cv-00283- 25 DMS-MSB Ninth Circuit Case 25-2322, and Doe Supervisors and Co-Conspirators 1–50. 26 (Compl., ECF No. 1 at 1–2). Plaintiff alleges constitutional violations through 42 U.S.C. 27 §§ 1983, 1985(2), and 1986. (Id. at 2, 12–14). Plaintiff concurrently filed a Motion to 28 Proceed In Forma Pauperis (“IFP Motion”) and a Motion to Appoint Counsel, which are 1 pending before the Court. (IFP Mot., ECF No. 2; Counsel Mot., ECF No. 3). The 2 Complaint also requests consolidation with Case No. 3:24-cv-00283-DMS-MSB. (Compl. 3 16). For the following reasons, the Court grants Plaintiff’s IFP Motion, sua sponte 4 dismisses the Complaint with leave to amend, denies the Motion to Appoint Counsel, and 5 denies the request for consolidation. 6 I. MOTION TO PROCEED IN FORMA PAUPERIS 7 Parties instituting a civil action in a United States district court must pay a filing fee 8 of $405. 28 U.S.C. § 1914(a)–(b).1 However, a court may authorize a party to proceed in 9 forma pauperis (“IFP”) without the prepayment of fees if the party submits an affidavit 10 demonstrating their inability to pay. § 1915(a)(1); see CivLR 3.2(a) (listing specific 11 requirements for the affidavit). Although a party need not be “absolutely destitute” to 12 proceed IFP, they must “allege poverty with some particularity, definiteness and certainty” 13 such that they could not “pay the court costs and still afford the necessities of life.” 14 Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citation modified). 15 Plaintiff’s IFP Motion consists of an Application to Proceed in District Court 16 Without Prepaying Fees or Costs (Form AO 239). (IFP Mot. 1). Plaintiff reports that he 17 is homeless and that his only income from the past twelve months was from temporary 18 staffing work in October and November 2025, averaging $1,403.29 per month. (Id. at 1– 19 2). Plaintiff states that he has $7.29 in cash and no other assets or expenses, although he 20 hopes to secure gainful employment. (Id. at 2–5). The Court finds that Plaintiff has 21 sufficiently demonstrated that he cannot “pay the court costs and still afford the necessities 22 of life.” Escobedo, 787 F.3d at 1234. Accordingly, the Court grants Plaintiff’s IFP 23 Motion. 24 25 26 1 The $405 fee consists of a $350 filing fee mandated by § 1914(a) and a $55 administrative fee prescribed 27 by the Judicial Conference of the United States pursuant to § 1914(b). See Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). However, the filing fee for an 28 1 II. SUA SPONTE SCREENING 2 A. Background 3 On February 7, 2024, Plaintiff filed an action against the City and others arising from 4 the impoundment of his vehicle in late 2021. See Swadener v. State of California, No. 5 3:24-cv-00283-DMS-MSB (S.D. Cal. filed Feb. 7, 2024).2 On March 3, 2025, the Court 6 dismissed the action as time-barred without leave to amend and judgment was entered the 7 following day. (24-cv-00283 ECF Nos. 44, 45). On April 4, 2025, Plaintiff filed a Notice 8 of Appeal to the Ninth Circuit. (24-cv-00283 ECF No. 47); see Swadener v. City of 9 Escondido, No. 25-2322 (9th Cir. docketed Apr. 10, 2025).3 Plaintiff alleges that on April 10 17, 2025, while his appeal was pending, he was detained by Defendants Officer Vea and 11 Detective Naranjo for violating California Health and Safety Code section 11350. (Compl. 12 6). Plaintiff alleges that during his detention he was interviewed by Officer Vea and 13 Detective Naranjo, “and thereafter entered into a written cooperation agreement to assist 14 EPD in preventing Fentanyl trafficking in the City of Escondido.” (Id. (stating that the 15 EPD retained the only copy of the written agreement)). Plaintiff was released that same 16 day and received a Certificate of Release confirming that the incident “was a detention 17 only, not an arrest.” (ECF No. 1-2 at 3); see Cal. Penal Code § 851.6 (West 2026). On 18 May 27, 2025, the Ninth Circuit denied Plaintiff’s Motion for Appointment of Counsel and 19 reset the opening brief deadline from May 20, 2025 to July 1, 2025. (25-2322 ECF Nos. 20 2, 10; see ECF No. 1-2 at 10–11). 21 22 23 2 The Court takes sua sponte judicial notice of the filings in Case No. 3:24-cv-00283-DMS-MSB. See 24 Fed. R. Evid. 201(c) (“The court may judicially notice a fact that is not subject to reasonable dispute . . . 25 on its own . . . at any stage of the proceeding.”); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“In particular, a court may take judicial notice of its own records in other cases . . . .”). 26 3 The Court additionally takes judicial notice of the filings in Plaintiff’s appeal, Case No. 25-2322, which has direct relation to the matters at issue here. See United States ex rel. Robinson Rancheria Citizens 27 Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (noting that courts “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have 28 1 Plaintiff alleges that he had daily communication with Detective Naranjo from his 2 release in April until June when the detective abruptly ceased all communication. (Compl. 3 6). Plaintiff alleges “that EPD discovered his identity as the Plaintiff suing them in federal 4 court and thereafter retaliated by terminating contact and targeting him for punitive action.” 5 (Id. at 6–7). Plaintiff alleges that on June 21, 2025, he was arrested and charged with 6 violating Health and Safety Code section 11395 for conduct he believes was solicited under 7 the cooperation agreement. (Id. at 7, 12). Plaintiff alleges that the arresting officers 8 confiscated his legal documents and the phone he used to communicate with Detective 9 Naranjo. (Id. at 9; but see ECF No. 1-2 at 2 (stating that Plaintiff’s legal documents were 10 stolen on March 25, 2025, in a vehicle burglary)). While at the police headquarters, an 11 arresting officer allegedly “informed Plaintiff that the arrest decision came from ‘someone 12 upstairs.’” (Compl. 7). Plaintiff alleges that he was booked into the Vista Detention 13 Facility operated by the San Diego County Sheriff’s Department. (Id. at 3, 7). Plaintiff 14 alleges that while at the facility, he “was fed contaminated food that caused food poisoning 15 resulting in severe and prolonged illness.” (Id. at 7). Plaintiff alleges that at the infirmary, 16 he received anti-nausea medication and took a COVID-19 test, which was negative. (Id.). 17 Plaintiff alleges that he was “nevertheless placed into a punitive ‘COVID isolation cell’” 18 for ten days, depriving him of medical care, communication, access to the courts, and the 19 ability to file his Ninth Circuit appeal opening brief. (Id. at 7–8). 20 Plaintiff alleges that he was not brought to court for arraignment until July 1, 2025, 21 ten days after being booked into custody. (Id. at 8). Plaintiff alleges that he “was released 22 on that same day, on the condition of surrendering his Fourth Amendment rights.” (Id. at 23 8). On July 11, 2025, Plaintiff filed a Motion to Stay Proceedings in his Ninth Circuit 24 appeal. (25-2322 ECF No. 13). The Ninth Circuit construed the motion as a request for 25 an extension of time to file an opening brief and the deadline was extended to September 26 2, 2025. (25-2322 ECF No. 14). On August 13, 2025, the mailing with the court’s order 27 was returned as undeliverable. (25-2322 ECF No. 15). On September 29, 2025, Plaintiff 28 submitted filings with various updates but not containing an opening brief. (25-2322 ECF 1 No. 16). On October 20, 2025, Plaintiff filed an administrative complaint with the EPD 2 over the June 21, 2025 arrest, which was later closed as “exonerated.” (Compl. 8; ECF 3 No. 1-2 at 6–8). On December 18, 2025, the Ninth Circuit extended the opening brief 4 deadline to January 26, 2026, although this mailing was also later returned as 5 undeliverable. (25-2322 ECF Nos. 17, 18). On January 21, 2026, Plaintiff filed this action 6 with a Motion to Proceed IFP and a Motion to Appoint Counsel. (ECF Nos. 1–3). On 7 February 9, 2026, Plaintiff filed an ex parte communication alleging threats from the EPD. 8 (ECF No. 7). On February 19, 2026, the Ninth Circuit dismissed the appeal because 9 Plaintiff had not filed an opening brief, and this mailing was also returned as undeliverable. 10 (25-2322 ECF Nos. 19, 20; see 24-cv-00283 ECF No. 50). 11 Plaintiff now asserts seven causes of action: (1) a § 1983 claim for unlawful, 12 retaliatory, and selectively enforced arrest in violation of the First, Fourth, and Fourteenth 13 Amendments; (2) a § 1983 claim for denial of access to courts while incarcerated; (3) a 14 § 1983 claim for unconstitutional conditions of confinement and deliberate indifference; 15 (4) a § 1983 claim for delayed arraignment; (5) a § 1983 Monell claim for unconstitutional 16 customs and ratification; (6) a § 1985(2) claim for conspiracy to obstruct federal litigation 17 and prevent assertion of Plaintiff’s rights; and (7) a § 1986 claim for failure to prevent 18 retaliation and conspiracy. (Compl. 12–14); see Monell v. Dep’t of Soc. Servs., 436 U.S. 19 658 (1978). Plaintiff seeks declaratory, compensatory, punitive, and injunctive relief. 20 (Compl. 15–16). 21 B. Legal Standard 22 Under 28 U.S.C. § 1915(e)(2), the Court must screen an IFP complaint and dismiss 23 the case if, at any time, it determines that the action is frivolous or malicious, fails to state 24 a claim on which relief may be granted, or seeks monetary relief against a defendant who 25 is immune from such relief. See Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per 26 curiam) (confirming § 1915(e)(2)(B) applies to non-prisoners as well). A complaint “is 27 frivolous where it lacks an arguable basis either in law or in fact” and malicious where “it 28 was filed with the intention or desire to harm another.” Neitzke v. Williams, 490 U.S. 319, 1 325 (1989); Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citation modified). 2 “The standard for determining whether a plaintiff has failed to state a claim upon which 3 relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil 4 Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 5 1112 (9th Cir. 2012). Accordingly, “a complaint must contain sufficient factual matter, 6 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 7 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 8 In reviewing the plausibility of a complaint on a motion to dismiss, a court must “accept 9 factual allegations in the complaint as true and construe the pleadings in the light most 10 favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 11 1025, 1031 (9th Cir. 2008). However, “[t]hreadbare recitals of the elements of a cause of 12 action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 13 Finally, dismissal is warranted when the plaintiff seeks monetary relief against an immune 14 defendant, as long as the court “has sufficient information to make a determination on 15 immunity.” Chavez v. Robinson, 817 F.3d 1162, 1167 (9th Cir. 2016). 16 C. Discussion 17 The Court now examines the Complaint to determine whether it is frivolous or 18 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief 19 against a defendant with immunity from such relief. 20 As a preliminary matter, Plaintiff lists “all previously named Defendants in Southern 21 District Court Case Number 3:24-cv-00283-DMS-MSB” among the parties being sued. 22 (Compl. 1–2). However, this violates Federal Rule of Civil Procedure 10(a) which requires 23 the “title of the complaint [to] name all the parties.” See Derry Prods., Inc. v. Individuals, 24 P’ships & Unincorporated Ass’ns Identified on Schedule A, No. 2:21-cv-02155-FLA 25 (SKx), 2021 WL 3932049, at *1 (C.D. Cal. Mar. 18, 2021) (finding that incorporating the 26 names of defendants by reference violates Rule 10(a)); see also Taylor v. List, 880 F.2d 27 1040, 1045 (9th Cir. 1989) (“Liability under section 1983 arises only upon a showing of 28 personal participation by the defendant.”). Furthermore, to the extent Plaintiff seeks to 1 revive claims arising from the December 23, 2021 impoundment of his vehicle, those 2 claims are barred by res judicata. Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 3 (9th Cir. 2005) (“Res judicata applies when the earlier suit (1) involved the same claim or 4 cause of action as the later suit, (2) reached a final judgment on the merits, and (3) involved 5 identical parties or privies.” (citation modified)). Accordingly, these Defendants are 6 dismissed unless specifically named in an amended complaint for claims unrelated to 7 Plaintiff’s previous lawsuit. 8 Plaintiff brings this action against City Attorney McGuinness, Interim Chiefs 9 Witholt and Banks, Sheriff Martinez, and Hearing Officer Mata, but does not make any 10 specific allegations against them. To the extent Plaintiff sues these Defendants in their 11 official capacity, the claims are analyzed under Monell as against the City of Escondido 12 and County of San Diego. 436 U.S. 658; Kentucky v. Graham, 473 U.S. 159, 165 (1985) 13 (“Official-capacity suits . . . generally represent only another way of pleading an action 14 against an entity of which an officer is an agent.” (citation modified)); see Streit v. County 15 of Los Angeles, 236 F.3d 552, 565 (9th Cir. 2001) (finding that a California sheriff is a 16 county actor when functioning as the administrator of a local jail). To the extent Plaintiff 17 sues these Defendants in their individual capacity, the lack of specific allegations against 18 them defeats these claims. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) 19 (requiring personal participation for liability under § 1983); Rodriguez v. County of Los 20 Angeles, 891 F.3d 776, 798 (9th Cir. 2018) (finding that a supervisor is only liable under § 21 1983 where they were personally involved in the constitutional violation or there is a 22 sufficient causal connection between their wrongful conduct and the constitutional 23 violation). Therefore, any individual-capacity claims against City Attorney McGuinness, 24 Interim Chiefs Witholt and Banks, Sheriff Martinez, and Hearing Officer Mata are 25 dismissed. 26 1. Unlawful Arrest 27 Plaintiff’s first cause of action alleges that his June 21, 2025 arrest was unsupported 28 by probable cause, carried out in retaliation for his federal litigation, and selectively 1 enforced. (Compl. 12). “A claim for unlawful arrest is cognizable under § 1983 as a 2 violation of the Fourth Amendment, provided the arrest was without probable cause or 3 other justification.” Dubner v. City of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). 4 “To bring a First Amendment retaliation claim, the plaintiff must allege that (1) [they] 5 engaged in constitutionally protected activity; (2) the defendant’s actions would chill a 6 person of ordinary firmness from continuing to engage in the protected activity; and (3) the 7 protected activity was a substantial motivating factor in the defendant’s conduct.” Ariz. 8 Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016) (citation 9 modified). Further, there must be but-for cause between the defendant’s retaliatory animus 10 and the plaintiff’s subsequent injury, meaning that “the existence of probable cause defeats 11 a retaliatory arrest claim.” Hill v. City of Fountain Valley, 70 F.4th 507, 518 (9th Cir. 12 2023) (citing Nieves v. Bartlett, 587 U.S. 391, 404 (2019)). There is a narrow exception 13 “where officers have probable cause to make arrests, but typically exercise their discretion 14 not to do so” and the plaintiff “presents objective evidence that he was arrested when 15 otherwise similarly situated individuals not engaged in the same sort of protected speech 16 had not been.” Nieves, 587 U.S. at 406–07; see Gonzalez v. Trevino, 602 U.S. 653, 658 17 (2024) (noting that the objective evidence does not have to come in the form of “virtually 18 identical and identifiable comparators”). Finally, to plead selective enforcement, a plaintiff 19 must show both a discriminatory effect and an improper purpose. Lacey v. Maricopa 20 County, 693 F.3d 896, 920–22 (9th Cir. 2012) (en banc). 21 Here, Plaintiff alleges that he entered into a written agreement with the EPD, he was 22 arrested for the conduct solicited by the agreement, Detective Naranjo cut off contact due 23 to Plaintiff’s ongoing litigation, the decision to arrest Plaintiff came from “someone 24 upstairs,” and the arrest occurred ten days before his opening brief deadline. (Compl. 6– 25 7). However, by Plaintiff’s own admission, the officers “recovered Marijuana and 26 Methamphetamine” in addition to a pipe and scale. (ECF No. 1-2 at 6); Fed. R. Civ. P. 27 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the 28 pleading for all purposes.”); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 1 2008) (noting that courts “need not accept as true allegations contradicting documents that 2 are referenced in the complaint or that are properly subject to judicial notice”). Since the 3 discovery of methamphetamine and paraphernalia provided probable cause for an arrest, 4 Plaintiff’s unlawful arrest claim is dismissed. See District of Columbia v. Wesby, 583 U.S. 5 48, 54 n.2 (2018) (“[A]n arrest is lawful if the officer had probable cause to arrest for any 6 offense, not just the offense cited at the time of arrest or booking.”); Broam v. Bogan, 320 7 F.3d 1023, 1032 (9th Cir. 2003) (finding that once probable cause is established, an officer 8 is not required to investigate every claim of innocence or potential defense). Furthermore, 9 although Plaintiff’s filing of an appeal was a constitutionally protected activity and an 10 arrest is sufficient to chill a person of ordinary firmness, the existence of probable cause 11 negates the but-for cause needed for a First Amendment retaliation claim. See Rodriguez 12 v. Newsom, 974 F.3d 998, 1010 (9th Cir. 2020) (“The right to petition ‘protects the right of 13 individuals to appeal to courts and other forums established by the government for 14 resolution of legal disputes.’” (quoting Borough of Duryea v. Guarnieri, 564 U.S. 379, 387 15 (2011))); Lacey, 693 F.3d at 917 (“To state that arresting someone in retaliation for their 16 exercise of free speech rights is sufficient to chill speech is an understatement.” (citation 17 modified)). Finally, Plaintiff has not plausibly alleged a discriminatory effect or an 18 improper purpose to show selective enforcement. Accordingly, Plaintiff’s unlawful, 19 retaliatory, and selectively enforced arrest claim is dismissed.4 20 21 22 4 Furthermore, the Complaint does not state whether the criminal proceedings arising out of the June 21, 2025 arrest are currently pending. If the proceedings resulted in a conviction, then any § 1983 claim that 23 would necessarily imply the invalidity of that conviction would be barred. Heck v. Humphrey, 512 U.S. 477, 487 (1994) (finding that if “a judgment in favor of the plaintiff would necessarily imply the invalidity 24 of his conviction or sentence . . . the complaint must be dismissed unless the plaintiff can demonstrate that 25 the conviction or sentence has already been invalidated.”). If, however, the criminal proceedings are ongoing, the Court may be required to abstain under Younger. Younger v. Harris, 401 U.S. 37 (1971); 26 see ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014) (“In civil cases, therefore, Younger abstention is appropriate only when the state proceedings: (1) are ongoing, (2) 27 are quasi-criminal enforcement actions or involve a state’s interest in enforcing the orders and judgments of its courts, (3) implicate an important state interest, and (4) allow litigants to raise federal challenges.”); 28 1 2. Access to Courts 2 Plaintiff’s second cause of action alleges that Defendants interfered with Plaintiff’s 3 ability to prosecute his Ninth Circuit appeal. (Compl. 12–13). Although “prisoners have 4 a constitutional right of access to the courts,” the lawsuit in question must be related to 5 their sentence or conditions of confinement. Bounds v. Smith, 430 U.S. 817, 821–22 6 (1977); Lewis v. Casey, 518 U.S. 343, 355 (1996) (“In other words, Bounds does not 7 guarantee inmates the wherewithal to transform themselves into litigating engines capable 8 of filing everything from shareholder derivative actions to slip-and-fall claims.”); see 9 Griepsma v. Andersen, No. 20-35948, 2021 WL 4844213, at *1 (9th Cir. Oct. 18, 2021) 10 (applying Lewis to a pretrial detainee). Thus, Plaintiff’s access-to-courts claim is doubtful 11 because he was appealing an order finding claims related to the impoundment of his vehicle 12 to be time-barred. (24-cv-00283 ECF No. 44); Simmons v. Sacramento Cnty. Superior Ct., 13 318 F.3d 1156, 1160 (9th Cir. 2003) (“In other words, a prisoner has no constitutional right 14 of access to the courts to litigate an unrelated civil claim.”); see Lewis, 518 U.S. at 355 15 (“Impairment of any other litigating capacity is simply one of the incidental (and perfectly 16 constitutional) consequences of conviction and incarceration.”). In any event, an access- 17 to-courts claim requires “actual injury,” which is “actual prejudice with respect to 18 contemplated or existing litigation, such as the inability to meet a filing deadline or to 19 present a claim.” Lewis, 518 U.S. at 349, 352–53, 353 n.3 (noting that the intended claim 20 must be “arguable” and “nonfrivolous”); Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 21 1018 (9th Cir. 2011) (citation modified). As Plaintiff’s deadline was twice extended 22 beyond July 1, 2025, when he was released, he does not plausibly allege actual injury 23 24 25 Arevalo v. Hennessy, 882 F.3d 763, 765–66 (9th Cir. 2018) (“Even if Younger abstention is appropriate, federal courts do not invoke it if there is a showing of bad faith, harassment, or some other extraordinary 26 circumstance that would make abstention inappropriate.” (citation modified)); see, e.g., Floyd v. S.J. Police Dep’t, No. 22-16243, 2023 WL 4743272, at *1 (9th Cir. July 25, 2023) (affirming district court’s 27 abstention over “§ 1983 action alleging constitutional violations in connection with [Plaintiff’s] arrest”). Thus, any attempt to revive this claim in an amended complaint must state the current status of all criminal 28 1 sufficient to support an access-to-courts claim. (25-2322 ECF Nos. 14, 17; Compl. 8). 2 Accordingly, Plaintiff’s access-to-courts claim is dismissed. 3 3. Conditions of Confinement 4 Plaintiff’s third cause of action alleges that he was fed contaminated food, denied 5 adequate medical care, and placed in punitive isolation without justification. (Compl. 13). 6 As a pretrial detainee, Plaintiff’s claim is “analyzed under the Fourteenth Amendment Due 7 Process Clause, rather than under the Eighth Amendment.” Norbert v. City of San 8 Francisco, 10 F.4th 918, 928 (9th Cir. 2021) (citation modified); see Bell v. Wolfish, 441 9 U.S. 520, 535 (1979) (holding that conditions or restrictions of pretrial detention may not 10 “amount to punishment of the detainee . . . prior to an adjudication of guilt in accordance 11 with due process of law”). To sustain this claim, Plaintiff must plausibly allege that 12 Defendants “acted with ‘deliberate indifference.’” Castro v. County of Los Angeles, 833 13 F.3d 1060, 1068 (9th Cir. 2016) (en banc); see Gordon v. County of Orange, 888 F.3d 14 1118, 1124–25 (9th Cir. 2018) (confirming that the same standard applies to allegations of 15 inadequate medical care) (“[T]he plaintiff must prove more than negligence but less than 16 subjective intent—something akin to reckless disregard.” (citation modified)). To show 17 deliberate indifference, a plaintiff must plausibly allege that “(1) The defendant made an 18 intentional decision with respect to the conditions under which the plaintiff was confined; 19 (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; (3) The 20 defendant did not take reasonable available measures to abate that risk, even though a 21 reasonable officer in the circumstances would have appreciated the high degree of risk 22 involved—making the consequences of the defendant’s conduct obvious; and (4) By not 23 taking such measures, the defendant caused the plaintiff’s injuries.” Castro, 833 F.3d at 24 1071. 25 Here, while Plaintiff alleges that he was fed contaminated food, he does not allege 26 an intentional decision on the part of any Defendant related to that condition. (Compl. 7, 27 13); see Jones, 297 F.3d at 934 (“In order for a person acting under color of state law to be 28 liable under section 1983 there must be a showing of personal participation in the alleged 1 rights deprivation: there is no respondeat superior liability under section 1983.”). 2 Furthermore, Plaintiff does not allege how his medical care was inadequate or identify an 3 intentional decision on the part of any Defendant that caused inadequate care. (Compl. 7, 4 13); see Iqbal, 556 U.S. at 678 (holding that conclusory statements are insufficient to state 5 a plausible claim). Finally, regarding Plaintiff’s allegations of punitive isolation, a 6 condition of confinement is unconstitutional punishment where it is “not rationally related 7 to a legitimate governmental objective or . . . is excessive in relation to that purpose.” 8 Castro, 833 F.3d at 1069 (quoting Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015)). 9 Plaintiff’s assertion that his quarantine “had no medical justification and was used as a tool 10 of retaliation and obstruction” is conclusory. (Compl. 7). Furthermore, Plaintiff does not 11 attribute the placement decision to any named or unnamed Defendant, or allege that it was 12 a part of a Monell policy or custom. As such, Plaintiff’s claim for unconstitutional 13 conditions of confinement fails to state a plausible claim and is dismissed. 14 4. Delayed Arraignment 15 Plaintiff’s fourth cause of action alleges that he was detained for ten days without 16 arraignment. (Compl. 8, 13). Following a warrantless arrest, “the Fourth Amendment 17 requires a judicial determination of probable cause,” which must be done promptly. 18 Gerstein v. Pugh, 420 U.S. 103, 114, 125 (1975). “This judicial determination, however, 19 may be informal and non-adversarial,” and “does not require a personal appearance” by 20 the arrestee. Jones v. City of Santa Monica, 382 F.3d 1052, 1055 (9th Cir. 2004). A judicial 21 determination within forty-eight hours of arrest is presumptively reasonable unless the 22 individual can prove that the determination was unreasonably delayed. County of Riverside 23 v. McLaughlin, 500 U.S. 44, 56 (1991). However, when the delay is greater than forty- 24 eight hours, “the burden shifts to the government to demonstrate the existence of a bona 25 fide emergency or other extraordinary circumstance.” Id. at 57 (noting that consolidating 26 proceedings and intervening weekends are not extraordinary circumstances). A claim for 27 damages arising from a delayed probable cause determination is cognizable under § 1983. 28 See, e.g., Smith v. City of Honolulu, 887 F.3d 944, 949–51 (9th Cir. 2018) (applying 1 McLaughlin to a § 1983 claim tried before a jury); Lozano v. Doe 1, 591 F. Supp. 3d 700, 2 716–18 (C.D. Cal. 2022); Muhammad v. County of Riverside, No. 5:23-cv-01260-VBF- 3 KS, 2025 WL 4648395, at *12 (C.D. Cal. Sept. 15, 2025). Here, Plaintiff argues that ten 4 days passed between his June 21, 2025 arrest and his first court appearance. (Compl. 8, 5 13). However, Plaintiff fails to allege that the arrest was warrantless and that there was not 6 a judicial probable cause determination until his arraignment. Crucially, Plaintiff also does 7 not identify any Defendant who was responsible or allege the existence of a Monell policy 8 or custom. See Jones, 297 F.3d at 934 (requiring personal participation for § 1983 9 liability). Accordingly, this claim is dismissed. 10 5. Municipal Liability 11 Plaintiff’s fifth cause of action is a Monell claim alleging that the City maintained 12 “unconstitutional customs” that were the “moving force” behind alleged violations of 13 Plaintiff’s rights, and that “[s]upervisors knowingly ratified or failed to prevent violations.” 14 (Compl. 13); see 436 U.S. 658.5 “To establish municipal liability under Monell, [Plaintiff] 15 must prove that (1) he was deprived of a constitutional right; (2) the municipality had a 16 policy; (3) the policy amounted to deliberate indifference to [his] constitutional right; and 17 (4) the policy was the moving force behind the constitutional violation.” Lockett v. County 18 of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020). A policy is “a deliberate choice to 19 follow a course of action [] made from among various alternatives by the official or 20 officials responsible for establishing final policy with respect to the subject matter in 21 question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). A policy can come 22 in the form of an expressly adopted official policy, a longstanding practice or custom, or 23 ratification by an official with final policymaking authority. Gordon v. County of Orange, 24 6 F.4th 961, 973–74 (9th Cir. 2021). In the case of ratification, the “official with final 25 26 27 5 It is unclear whether Plaintiff asserts this claim against the County. (See Compl. 1, 9, 13). Regardless, the claim fails for the same reasons that it fails against the City. 28 1 policy-making authority” must have known “of the constitutional violation” and made a 2 “conscious, affirmative choice” to approve of it. Id. at 974 (citation modified); Lytle v. 3 Carl, 382 F.3d 978, 987 (9th Cir. 2004); Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 4 1992). Here, Plaintiff lists a variety of “unconstitutional procedures” including soliciting 5 his assistance under written agreement, releasing him under Cal. Penal Code section 851.6, 6 arresting him for conduct he was allegedly solicited to do, selective enforcement, 7 retaliatory arrest, confiscation of his legal documents, and seizing of the phone he used to 8 allegedly communicate with the detective. (Compl. 9). While this list covers Plaintiff’s 9 allegations in this action, he does not identify any official policies, “permanent and well 10 settled” customs, or affirmative ratification by any appropriate officials. Gordon, 6 F.4th 11 at 974 (“Liability for improper custom may not be predicated on isolated or sporadic 12 incidents; it must be founded upon practices of sufficient duration, frequency and 13 consistency that the conduct has become a traditional method of carrying out policy.” 14 (citation modified)); see Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (noting that 15 “where the petitioner is pro se, particularly in civil rights cases,” the obligation of the court 16 is “to construe the pleadings liberally and to afford the petitioner the benefit of any doubt”). 17 Accordingly, the Court dismisses Plaintiff’s Monell claim. 18 6. Section 1985(2) 19 Plaintiff’s sixth cause of action alleges that Defendants “conspired to deter Plaintiff 20 from pursuing federal rights” in violation of § 1985(2). That section prohibits conspiring 21 “to deter, by force, intimidation, or threat” any party or witness from attending or testifying 22 in federal court. § 1985(2); Portman v. County of Santa Clara, 995 F.2d 898, 909 (9th Cir. 23 1993) (setting out elements). Here, Plaintiff’s claim fails because he does not plausibly 24 allege an agreement or meeting of the minds between Defendants to violate his 25 constitutional rights. See O’Handley v. Weber, 62 F.4th 1145, 1162 (9th Cir. 2023). 26 Furthermore, it is unsettled whether employees of the same government entity may 27 conspire in violation of § 1985(2). See Est. of Browning v. L.V. Metro. Police Dep’t, No. 28 24-2034, 2026 WL 1978071, at *3 (9th Cir. July 8, 2026) (citing Ziglar v. Abbasi, 582 U.S. 1 120, 154 (2017)) (acknowledging the circuit split over whether officers from the same 2 public entity are distinct enough to conspire under § 1985); Portman, 995 F.2d at 910 3 (same). Regardless, Plaintiff’s conclusory allegations are insufficient and these claims are 4 dismissed. Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988) (“A 5 claim under this section must allege facts to support the allegation that defendants 6 conspired together. A mere allegation of conspiracy without factual specificity is 7 insufficient.”). 8 7. Section 1986 9 Plaintiff’s seventh cause of action alleges that Defendants failed to prevent 10 retaliation and conspiracy, including supervisors knowing of the conspiracy and failing to 11 act. (Compl. 14). However, “[a] claim can be stated under section 1986 only if the 12 complaint contains a valid claim under section 1985.” Karim-Panahi, 839 F.2d at 626. 13 Accordingly, Plaintiff’s § 1986 claim is dismissed. 14 Finally, the Court does not have sufficient information at this time to determine 15 whether Defendants are immune from the relief sought. § 1915(e)(2)(B)(iii). 16 III. MOTION TO APPOINT COUNSEL 17 Plaintiff has filed a form Motion to Appoint Counsel, citing his unsuccessful efforts 18 to retain counsel and inability to pay for an attorney. (Counsel Mot. 1–3). There is no 19 constitutional right to appointment of counsel in a civil case, unless an indigent litigant’s 20 physical liberty is at stake. Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., 452 U.S. 18, 21 25 (1981). “However, a court may under ‘exceptional circumstances’ appoint counsel for 22 indigent civil litigants pursuant to 28 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d 23 965, 970 (9th Cir. 2009). “When determining whether exceptional circumstances exist, a 24 court must consider the likelihood of success on the merits as well as the ability of the 25 petitioner to articulate his claims pro se in light of the complexity of the legal issues 26 involved.” Id. (citation modified). Here, neither consideration supports appointment at 27 this time. Plaintiff’s Complaint has been dismissed with leave to amend and thus a 28 likelihood of success on the merits cannot presently be assessed. Furthermore, Plaintiff’s 1 Complaint does not evidence an inability to articulate claims on the legal issues involved. 2 For those reasons, Plaintiff’s Motion to Appoint Counsel is denied without prejudice. 3 IV. REQUEST FOR CONSOLIDATION 4 In his Complaint, Plaintiff requests that this action be consolidated with Case No. 5 3:24-cv-00283. (Compl. 5, 16). However, Rule 42 only permits consolidation of “actions 6 before the court.” Fed. R. Civ. P. 42(a). As Plaintiff’s prior action was dismissed without 7 leave to amend, judgment was entered, and the Ninth Circuit dismissed the appeal, the prior 8 action is not currently before the Court within the meaning of Rule 42. (24-cv-00283 ECF 9 Nos. 44, 45; 25-2322 ECF No. 19). Furthermore, this action has already been transferred 10 to this Court, which presided over the previous action. (ECF Nos. 4, 5). 11 V. CONCLUSION AND ORDER 12 For the foregoing reasons, the Court GRANTS Plaintiff’s IFP Motion, sua sponte 13 DISMISSES the Complaint, DENIES Plaintiff’s Motion to Appoint Counsel without 14 prejudice, and DENIES Plaintiff’s request for consolidation. Within twenty-one (21) days 15 of the date of this Order, Plaintiff may file an amended complaint. Akhtar v. Mesa, 698 16 F.3d 1202, 1212 (9th Cir. 2012) (“A district court should not dismiss a pro se complaint 17 without leave to amend unless it is absolutely clear that the deficiencies of the complaint 18 could not be cured by amendment.” (citation modified)); Fed. R. Civ. P. 15(a) (courts 19 should “freely give leave [to amend] when justice so requires”). In any such amended 20 complaint, Plaintiff must clearly identify which causes of action are being asserted against 21 which Defendants. Gibson v. City of Portland, 165 F.4th 1265, 1290 (9th Cir. 2026) 22 (“[P]ermitting parties to file pleadings that do not tie factual averments against specific 23 parties to individual causes of action infringes Rule 8.”); Pickern v. Pier 1 Imports (U.S.), 24 Inc., 457 F.3d 963, 968 (9th Cir. 2006) (noting that Rule 8 “requires that the allegations in 25 the complaint give the defendant fair notice of what the plaintiff’s claim is and the grounds 26 upon which it rests” (citation modified)). If Plaintiff alleges any claims arising from his 27 June 21, 2025 arrest, he must state the current status of all related criminal proceedings. 28 I IT IS SO ORDERED. 2 || Dated: August 20, 2026 2» 3 fon Yn. 4 Hon. Dana M. Sabraw 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28