Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 RONNELL ROBIN DUNN, Case No.: 26-cv-04641-AJB-SBC 11 CDCR #BG-1620, 12 Plaintiff, ORDER: GRANTING MOTION TO PROCEED IN FORMA PAUPERIS 13 v. 14 AND 15 I. RODRIGUEZ, Correctional Officer; SCREENING COMPLAINT 16 J. LUNA, Correctional Officer; L. PURSUANT TO ROMERO, Correctional Officer; D. 28 U.S.C. §§ 1915(e)(2) AND 1915A(b) 17 COSTELLO, Correctional Officer, 18 Defendants. (Doc. Nos. 2, 3) 19 20 Ronnell Robin Dunn, a state prisoner proceeding pro se, has filed a civil rights 21 Complaint pursuant to 42 U.S.C. § 1983, along with a motion to proceed in forma pauperis 22 (“IFP”). (Doc. Nos. 1–2.) 23 In his Complaint, Dunn alleges that Defendants violated his constitutional rights by 24 physically and sexually assaulting him, denying him medical care, and harassing him while 25 he was incarcerated at Richard J. Donavan State Prison (“RJD”). (Doc. No. 1 at 4–5, 20.) 26 As explained below, the Court GRANTS Dunn’s IFP motion and SCREENS his 27 Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The Court finds that Dunn 28 adequately alleges Eighth Amendment claims against Defendants Rodriguez and Romero. 1 But the Court finds that he fails to state any other plausible claim for relief or any claim 2 against Defendants Luna and Costello. The Court, therefore, ORDERS Dunn to file either 3 an amended complaint that addresses the pleading deficiencies discussed below or a Notice 4 of Intent to Proceed with the Eighth Amendment claims alleged against Defendants 5 Rodriguez and Romero only. 6 I. Motion to Proceed IFP 7 Generally, anyone initiating a civil action in a U.S. district court must pay a $405 8 filing fee, which includes a $350 statutory fee and a $55 administrative fee (although 9 anyone granted IFP status is excused from paying the administrative fee). See 28 U.S.C. 10 § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 11 (eff. Dec. 1, 2023)). If a plaintiff fails to prepay the entire fee, the lawsuit will not go 12 forward unless the plaintiff’s IFP motion is granted under 28 U.S.C. § 1915(a). See 13 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 14 A prisoner filing an IFP motion must submit a “certified copy of the trust fund 15 account statement (or institutional equivalent),” which must cover “the 6-month period 16 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 17 King, 398 F.3d 1113, 1119 (9th Cir. 2005). 18 Even if the court grants IFP status, the prisoner must pay the statutory filing fee. 19 Payments, however, are determined based on the prisoner’s available resources. The 20 determination is as follows. First, courts calculate an initial filing fee payment. This initial 21 fee is twenty percent of the larger of two amounts: either the average monthly deposits in 22 the trust fund account over the past six months, or the average monthly balance in the 23 account for the past six months. See 28 U.S.C. § 1915(b)(1), (4); Bruce v. Samuels, 577 24 U.S. 82, 84 (2016). Nevertheless, if a prisoner plaintiff has insufficient assets, no initial 25 filing fee is required. Second, once the IFP motion is granted and the initial fee is charged, 26 the remaining balance must be paid in installments. 28 U.S.C. § 1915(b)(1)–(2); Bruce, 27 577 U.S. at 84. 28 1 Dunn’s IFP motion includes a copy of his California Department of Corrections and 2 Rehabilitation (“CDCR”) Inmate Statement Report and Prison Certificate attested to by a 3 CDCR trust account official. (Doc. No. 2 at 4–5.) His average monthly balance is $0.33, 4 his monthly deposits average $0.24, and his available balance is $0.18. (Id. at 5.) 5 The Court therefore GRANTS Dunn’s IFP motion. No initial partial fee will be 6 charged since it appears Dunn presently has no means to pay. See 28 U.S.C. § 1915(b)(4) 7 (“In no event shall a prisoner be prohibited from bringing a civil action” simply because 8 “the prisoner has no assets and no means by which to pay the initial partial filing fee.”); 9 Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding that 28 U.S.C. § 1915(b)(4) 10 acts as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on 11 “failure to pay . . . due to the lack of funds available to him when payment is ordered”). 12 Dunn is nevertheless required to pay the full $350 filing fee in installments as 28 U.S.C. 13 § 1915(b)(2) calls for. 14 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 15 A. Standard of Review 16 Because Dunn is a prisoner proceeding IFP, federal law requires pre-screening of 17 Dunn’s claims before any defendants are required to file an answer. 28 U.S.C. 18 §§ 1915(e)(2), 1915A(b). Pre-screening means that the Court must dismiss a prisoner’s IFP 19 complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks 20 damages from defendants who are immune. Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th 21 Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 22 (9th Cir. 2010) (28 U.S.C. § 1915A(b)). 23 “The standard for determining whether a plaintiff has failed to state a claim upon 24 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 25 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 26 1108, 1112 (9th Cir. 2012) (citation omitted). Likewise, § 1915A screening “incorporates 27 the familiar standard applied in the context of failure to state a claim under Federal Rule of 28 1 Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) 2 (citations omitted). 3 Rule 12(b)(6) requires that a complaint “contain sufficient factual matter, accepted 4 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 5 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 6 “Determining whether a complaint states a plausible claim for relief” is “a context-specific 7 task that requires the reviewing court to draw on its judicial experience and common 8 sense.” Id. at 679 (citation omitted). 9 “Section 1983 creates a private right of action against individuals who, acting under 10 color of state law, violate federal constitutional or statutory rights.” Devereaux v. Abbey, 11 263 F.3d 1070, 1074 (9th Cir. 2001) (citing 42 U.S.C. § 1983). The statute, though “not 12 itself a source of substantive rights, . . . provides a method for vindicating federal rights 13 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (citation and 14 internal quotation marks omitted). “To establish § 1983 liability, a plaintiff must show both 15 (1) deprivation of a right secured by the Constitution and laws of the United States, and 16 (2) that the deprivation was committed by a person acting under color of state 17 law.” Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1149 (9th Cir. 2011). 18 Complaints filed pro se must be “liberally construed, particularly where civil rights 19 claims are involved.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) 20 (citations omitted). 21 B. Allegations in the Complaint 22 Dunn names four defendants, Correctional Officers I. Rodriguez, J. Luna, L. 23 Romero, and D. Costello, across three counts. Dunn describes himself as a “black male 24 raised in poverty,” who is receiving in-custody mental health treatment for Post-Traumatic 25 Stress Disorder originating from sexual abuse he suffered between 2001 and 2003 at the 26 hands of officers in the juvenile detention system. (Doc. No. 1 at 3.) 27 Count One alleges that Officer Rodriguez violated Dunn’s Eighth Amendment right 28 on June 17, 2025, around 9:00 a.m., when Rodriguez touched Dunn’s genitals in a sexual 1 manner for ten seconds and forcefully grabbed his penis, causing extreme pain. (Doc. No. 2 1 at 4–5.) According to Dunn, Rodriguez was looking in the direction of his penis while 3 gratuitously touching him and asking Dunn, “Is that all of you, [racial slur]?” (Id. at 4.) 4 Dunn claims this touching took place in front of Facility E, Housing Unit 24, when 5 Rodriguez conducted a “body search” on Dunn while Dunn was engaged in “therapeutic 6 recreation.” (Id. at 4.) 7 Dunn states that he contemporaneously complained to Rodriguez about the 8 encounter by informing Rodriguez that he is “a victim of ‘sex abuse’ and that this 9 experience was ‘not right.’” (Id. at 4–5.) Dunn indicates that Rodriguez did not find 10 contraband on his person but states the interaction escalated when Dunn “began yelling: 11 ‘Stop grabbing my dick!’” (Id. at 5.) This triggered the arrival of other officers, including 12 Costello, who “placed [Dunn] in handcuffs, using disproportionate force,” as Dunn “was 13 compliant during the episode.” (Id. at 5.) When he reported being in pain and requested 14 medical attention, Dunn states Rodriguez, Costello, and Luna all denied him access to 15 medical care. (Id.) He relates that he filed a written request for health care at 10:00 a.m. 16 and was seen by a nurse and treated at 12:00 p.m. when he experienced pain while 17 urinating. (Id.) Dunn alleges that the treating nurse “conclud[ed] with reasonable medical 18 certainty that [his] genitals had been bruised to the point of causing serious pain.” (Id.) By 19 3:00 p.m. that day, Dunn asserts, he began to need more intensive mental health care due 20 to the alleged sexual assault by Rodriguez. (Id. at 6.) 21 In Count Two, Dunn focuses on his conversation with Luna, whom Dunn said 22 refused to talk to him about his claim that Rodriguez sexually assaulted Dunn during the 23 pat down. (Id. at 7.) Dunn also states that Luna ordered Costello to escort Dunn to his 24 housing unit after the incident instead of taking him to receive medical care. (Id.) Since 25 this meant that Dunn did not receive medical attention until two hours later, Dunn alleges 26 Luna violated the Eighth Amendment through deliberate indifference “toward [his] serious 27 and deepening medical pain.” (Id.) 28 1 In Count Three, Dunn alleges that, following the incident with Rodriguez, Officer 2 Romero forcefully handcuffed Dunn and, “[w]ithout any warning,” “slammed his knee 3 violently against [Dunn’s] upper back while applying his whole body weight . . . upon 4 [Dunn’s] body while he sadistically and maliciously laughed.” (Id. at 8.) Dunn alleges that 5 Romero’s use of force came “absent provocation or any resistance,” saying he “complied 6 with all orders to lie flat on the ground, with [his] face to the concrete.” (Id.) Per Dunn, 7 Romero’s contact left him with “contusions, swelling, bruising, and additional medical 8 detriment.” (Id.) 9 Finally, Dunn alleges that on the day of the assault and afterwards, Romero loudly 10 called him a “snitch” and a “rat” and other epithets. (Id.) A separate attachment indicates 11 that Romero verbally labeled Dunn a “snitch” on six dates throughout August and October 12 of 2025. (Id. at 20.) Dunn alleges Romero “continues to harass him and threaten the use of 13 force to silence [his] practice of free speech. (Id. at 8.) 14 Dunn seeks an injunction to prevent, inter alia, Defendants “from ever contacting 15 [him] in person” and seeks nearly $60 million in compensatory and punitive damages. (Id. 16 at 10.) 17 C. Discussion 18 1. Sexual Assault (Count One) – Defendant Rodriguez 19 When an Eighth Amendment claim is based on a sexual assault, the Eighth 20 Amendment is violated “when a prison staff member, acting under color of law and without 21 legitimate penological justification, touched the prisoner in a sexual manner or otherwise 22 engaged in sexual conduct for the staff member’s own sexual gratification, or for the 23 purpose of humiliating, degrading, or demeaning the prisoner.” Bearchild v. Cobban, 947 24 F.3d 1130, 1144 (9th Cir. 2020). 25 Caselaw “recognizes that there are occasions when legitimate penological objectives 26 within a prison setting require invasive searches. It also accounts for the significant 27 deference courts owe to prison staff, who work in challenging institutional settings with 28 unique security concerns.” Id. at 1144–45. As such, “where the allegation is that a guard’s 1 conduct began as an invasive procedure that served a legitimate penological purpose, the 2 prisoner must show that the guard’s conduct exceeded the scope of what was required to 3 satisfy whatever institutional concern justified the initiation of the procedure.” Id. at 45. 4 Dunn alleges Rodriguez violated his Eighth Amendment rights on June 17, 2025, by 5 touching his genitals in a sexual and violent way, causing him serious pain and bruising. 6 (Doc. No. 1 at 5.) The Complaint does not suggest any need justifying the use of such force. 7 Hudson, 503 U.S. at 7. Rather, Dunn maintains he was compliant with the contraband 8 search done by Rodriguez and no contraband was detected. (Doc. No. 1 at 3–4.) Therefore, 9 as currently pleaded against Rodriguez in Count One, Dunn’s Complaint is sufficient to 10 survive the threshold set for sua sponte screening as required by 28 U.S.C. §§ 1915(e)(2) 11 and 1915A(b). Iqbal, 556 U.S. at 678; Hudson, 503 U.S. at 7; Wood v. Beauclair, 692 F.3d 12 1041, 1050 (9th Cir. 2012) (sexually touching and harassing inmate during a strip search 13 “in a manner designed to demean and humiliate” can state an Eighth Amendment claim); 14 Patrick v. McDermott, No. SA CV 16-318-PLA, 2019 WL 10255472, at *10 (C.D. Cal. 15 June 24, 2019) (prisoner’s allegations that correctional officers “fondled” his genitals 16 during pat down search enough to survive motion to dismiss). 17 2. Excessive Force (Count One) – Defendant Costello 18 Unnecessary and wanton infliction of pain violates the Cruel and Unusual 19 Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992). 20 For claims arising out of the use of excessive physical force, the Court considers “whether 21 force was applied in a good-faith effort to maintain or restore discipline, or maliciously and 22 sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (citing 23 Hudson, 503 U.S. at 7) (internal quotation marks omitted). Factors relevant to this inquiry 24 include: “the need for application of force, the relationship between that need and the 25 amount of force used, the threat ‘reasonably perceived by the responsible officials,’ and 26 ‘any efforts made to temper the severity of a forceful response.’” Hudson, 503 U.S. at 7 27 (quoting Whitley v. Albers, 475 U.S. 312, 321(1986)). “There is no legitimate need to use 28 any force against an inmate who is neither violating prison rules nor reasonably believed 1 to pose a security threat.” Stewart v. Ayala, No. 21-cv-9638-RGK-AS, 2023 WL 2993042, 2 at *2 (C.D. Cal. Mar. 8, 2023) (citing Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 3 1991)). 4 Dunn, however, fails to state a plausible Eighth Amendment claim against Officer 5 Costello, whom Dunn alleges only “placed [him] in handcuffs, using disproportionate 6 force” as Dunn “was compliant during the episode.” (Id. at 5.) Dunn’s conclusory 7 allegation points to nothing of factual substance. Dunn does not appear to contest that there 8 was a basis to handcuff him under the circumstances, and he provides no factual 9 information from which the Court can assess the degree of force used by Costello. 10 Therefore, he fails to plead a plausible excessive force claim against Defendant Costello. 11 The claim against Costello is dismissed. 12 3. Excessive Force (Count Three) – Defendant Romero 13 Dunn’s excessive force claim against Romero, however, is more detailed. He claims 14 Romero “slammed his knee violently against [Dunn’s] upper back while applying his 15 whole body weight” to Dunn even though Dunn was already not resisting and lying face- 16 down on the ground. (Doc. No. 1 at 8.) Considered liberally in the light most favorable to 17 Dunn, these allegations are enough to state a claim for excessive force against Romero in 18 count three. See Iqbal, 556 U.S. at 678; Hudson, 503 U.S. at 7; Rodriguez v. Cty. of Los 19 Angeles, 891 F.3d 776, 797 (9th Cir. 2018) (“More than de minimis force applied for no 20 good faith law enforcement purpose violates the Eighth Amendment.”); McRorie v. 21 Shimoda, 795 F.2d 780, 784 (9th Cir. 1986) (prisoner stated cognizable Eighth Amendment 22 claim where he alleged physical assault by prison official during a controlled strip search 23 that prisoner was not resisting); Navarro v. Bach, No. 04-cv-2013-J-AJB, 2008 WL 24 4492606, at *6 (S.D. Cal. Sept. 29, 2008) (beating a restrained prisoner without 25 provocation, even if it involved a de minimis use of force, is “repugnant” and violates the 26 Eighth Amendment); Moore v. Stepp, Co. C 11-05395 CW (PR), 2014 WL 2451893, at *8 27 (N.D. Cal. Jun. 2, 2014) (choking inmate without provocation constitutes excessive force 28 under the Eighth Amendment). 1 4. Deliberate Indifference (Counts One and Two) – Defendants 2 Rodriguez, Luna, and Costello 3 “Under 42 U.S.C. § 1983, to maintain an Eighth Amendment claim based on prison 4 medical treatment, an inmate must show ‘deliberate indifference to serious medical 5 needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 6 429 U.S. 97, 104 (1976)). “First, the plaintiff must show a serious medical need by 7 demonstrating that failure to treat a prisoner’s condition could result in further significant 8 injury or the unnecessary and wanton infliction of pain. Second, the plaintiff must show 9 the defendant’s response to the need was deliberately indifferent.” Wilhelm v. Rotman, 680 10 F.3d 1113, 1122 (9th Cir. 2012) (internal quotation marks and citations omitted). “Th[e] 11 second prong—defendant’s response to the need was deliberately indifferent—is satisfied 12 by (a) a purposeful act or failure to respond to plaintiff's pain or possible medical need and 13 (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 (internal citations omitted). 14 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 15 1060 (9th Cir. 2004). An “inadvertent [or negligent] failure to provide adequate medical 16 care” alone does not state a claim under § 1983. Id. at 1096 (citing Estelle, 429 U.S. at 17 105). An inmate must “make a subjective showing that the deprivation occurred with 18 deliberate indifference to the inmate’s health or safety.” Lemire v. Cal. Dep’t of Corr. & 19 Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (internal citation omitted). To satisfy this 20 subjective component of deliberate indifference, an inmate must show that prison officials 21 “kn[ew] of and disregard[ed]” a substantial risk of harm. Farmer v. Brennan, 511 U.S. 825, 22 837, 842 (1994). Under this standard, the prison official must not only “be aware of facts 23 from which the inference could be drawn that a substantial risk of serious harm exists,” but 24 that person “must also draw the inference.” Toguchi, 391 F.3d at 1057 (citing Farmer, 511 25 U.S. at 837). 26 Across Counts One and Two, Dunn alleges that Rodriguez, Luna, and Costello were 27 deliberately indifferent to serious pain he experienced due to Rodriguez’s alleged 28 manipulation of his genitals around 9:00 a.m. the day of the incident. (Doc. No. 1 at 5, 7.) 1 His requests for immediate medical care were denied by all three men, and he did not 2 receive care until two to three hours later when he contacted local nursing staff whom Dunn 3 says were able to conclude his genitals were bruised. (Id.) Dunn’s claim as pleaded falls 4 for short of alleging facts that could satisfy either prong of a deliberative indifference claim. 5 Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (mere 6 delay in medical treatment, absent a showing of resulting substantial harm, is insufficient 7 to support an Eighth Amendment violation). Therefore, the deliberate indifference claim is 8 dismissed with respect to all three Defendants. 9 5. Retaliation 10 To the extent Dunn may also be attempting to assert a claim of First Amendment 11 retaliation, his Complaint fails to include facts sufficient to support such a violation. A 12 prisoner “retains those First Amendment rights that are not inconsistent with his status as 13 a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. 14 Procunier, 417 U.S. 817, 822 (1974). “Prisoners’ First Amendment rights encompass their 15 right to file prison grievances,” Clinton v. Cooper, 781 F. App’x 582, 585 (9th Cir. 2019), 16 and to “‘pursue civil rights litigation in the courts,’” Rhodes v. Robinson, 408 F.3d 559, 17 567 (9th Cir. 2005) (quoting Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995)). 18 “[B]ecause purely retaliatory actions taken against a prisoner for having exercised those 19 rights necessarily undermine those protections, such actions violate the Constitution quite 20 apart from any underlying misconduct they are designed to shield.” Id.; see Watison, 668 21 F.3d at 1114 (“Prisoners have a First Amendment right to file grievances against prison 22 officials and to be free from retaliation for doing so.”). 23 To state a viable claim for First Amendment retaliation in the prison context, a 24 plaintiff must allege the following: 25 that (1) “the retaliated-against conduct is protected,” (2) the “defendant took adverse action against plaintiff,” (3) there is a “causal connection between the 26 adverse action and the protected conduct,” (4) the act “would chill or silence 27 a person of ordinary firmness,” and (5) the conduct does not further a legitimate penological interest. 28 1 Davis v. Powell, 901 F. Supp. 2d 1196, 1213 (S.D. Cal. 2012) (quoting Watison, 668 F.3d 2 at 1114). “Because direct evidence of retaliatory intent rarely can be pleaded in a complaint, 3 allegation of a chronology of events from which retaliation can be inferred is sufficient to 4 survive dismissal.” Watison, 668 F.3d at 1114. 5 Here, Dunn has pleaded insufficient facts to plausibly sustain any free-standing 6 retaliation claim. It is true that Dunn states that Romero used epithets to misidentify 7 Romero to other prisoners on the date of the incident and after. (Doc. No. 1 at 8.) But he 8 does not plead a causal connection between any First Amendment-protected action (such 9 as filing an administrative grievance with prison officials) and Romero’s conduct toward 10 him. Therefore, any First Amendment retaliation claim is dismissed. 11 D. Summary and Dunn’s Options 12 In sum, while Dunn’s Eighth Amendment claims against Rodriguez and Romero are 13 sufficiently pleaded, his Complaint requires dismissal with respect to Luna and Costello. 14 It also requires dismissal with respect to his claims of deliberate indifference and 15 retaliation. Since it is not “absolutely clear” that Dunn cannot fix his pleading deficiencies, 16 see Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015), he has two options: (1) Dunn 17 may simply notify the Court of his intent to proceed only with the Eighth Amendment 18 claims he has adequately alleged against Defendants Rodriguez and Romero; or (2) Dunn 19 may file an amended complaint that includes his adequately pleaded claims and corrects 20 his deficiencies of pleading with respect to both Luna and Costello and his deliberate 21 indifference and implied retaliation claims. Dunn must choose one of those two options 22 within 45 days of the date this Order is filed. 23 If Dunn notifies the Court that he wishes to proceed only with his Eighth 24 Amendment claims against Defendants Rodriguez and Romero only, the Court will direct 25 the Clerk to issue a summons upon them and order the U.S. Marshal to effect service upon 26 Rodriguez and Romero on his behalf pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 27 4(c)(3). But his insufficiently pleaded claims against Luna and Costello and the claims of 28 deliberate indifference and retaliation will remain dismissed from this action. If Dunn 1 instead chooses to file an amended complaint, that pleading will be subject to another 2 preliminary screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) before the Court 3 determines whether U.S. Marshal Service upon any Defendant is warranted. If Dunn does 4 nothing, the Court will dismiss the case based on his failure to prosecute in compliance 5 with a court order. 6 III. Conclusion 7 Thus, for the reasons explained, the Court: 8 1. GRANTS Dunn’s Motion to Proceed IFP (Doc. No. 2). 9 2. DIRECTS the Secretary of the CDCR, or his designee, to collect the $350 10 filing fee owed in this case and forward monthly payments from Dunn’s account to the 11 Clerk of the Court as required by 28 U.S.C. § 1915(b)(2). 12 3. DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail 13 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation, 14 P.O. Box 942883, Sacramento, California, 94283-0001. 15 4. DISMISSES all claims against Luna and Costello and the claims of deliberate 16 indifference and retaliation based on Dunn’s failure to state a plausible claim for relief 17 pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). 18 5. GRANTS Dunn forty-five (45) days’ leave from the date of this Order in 19 which to either: (A) file a Notice of Intent to Proceed with his Eighth Amendment claims 20 against Rodriguez and Romero only; or (B) file an amended complaint that corrects the 21 deficiencies of pleading identified in this Order. If Plaintiff files a Notice of Intent to 22 proceed against Rodriguez and Romero only, he may include a request that the U.S. 23 Marshal effect service of summons and his original Complaint on Rodriguez and Romero 24 pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). 25 If Dunn instead chooses to amend, his new pleading must be clearly titled as his 26 amended complaint, contain S.D. Cal. Civil Case No. 26-cv-4641-AJB-SBC in its caption, 27 and be complete in itself without reference to his original Complaint. Defendants not 28 named and any claim not realleged in Dunn’s amended complaint, including the currently 1 || sufficient Eighth Amendment claims alleged against Rodriguez and Romero in his original 2 || Complaint, will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. 3 ||v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended 4 || pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 5 |}2012) (noting that claims dismissed with leave to amend which are not re-alleged in an 6 |}amended pleading may be “considered waived if not repled’’). 7 If Dunn fails to file an amended complaint within the time provided or otherwise 8 || comply with this Order, the Court will enter a final Order dismissing this civil action based 9 || both on his failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. 10 §§ 1915(e)(2)(B)Gi) and 1915A(b)(1), and his failure to prosecute in compliance with a 11 || court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) 12 a plaintiff does not take advantage of the opportunity to fix his complaint, a district 13 || court may convert the dismissal of the complaint into dismissal of the entire action.”). 14 IT IS SO ORDERED. 15 || Dated: September 8, 2026 © 16 Hon, Anthony J.Battaglia 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 13