Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 MICHAEL D. PERVOE, Case No.: 3:25-cv-02271-CAB-MMP 11 CDCR #C-59138, ORDER: 12 Plaintiff, 13 vs. (1) SCREENING PLAINTIFF’S FIRST AMENDED COMPLAINT; 14 JEFF MACOMBER, Secretary of CDCR, et and al., 15 Defendants. (2) DIRECTING U.S. MARSHAL 16 TO EFFECT SERVICE OF THE 17 FIRST AMENDED COMPLAINT PURSUANT TO 28 U.S.C. § 1915(d) 18 AND Fed. R. Civ. P. 4(c)(3) 19 [Doc. No. 10] 20 21 22 23 24 On August 29, 2025, Plaintiff Michael D. Pervoe, who is proceeding pro se and 25 incarcerated at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, 26 filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. [Doc. No. 1.] Because Plaintiff 27 failed to initially move for in forma pauperis (“IFP”) status or pay the civil case filing fee, 28 his Complaint was dismissed without prejudice. [Doc. No. 4.] Subsequently, Plaintiff 1 moved for leave to proceed IFP and sought leave to file an amended complaint, [Doc. 2 Nos. 5, 7], and the Court granted both motions. [Doc. No. 9.] Plaintiff filed his First 3 Amended Complaint on April 2, 2026. [Doc. No. 10 (“FAC”).] The FAC names eight 4 defendants and states four causes of action, all related to Defendants’ alleged failures to 5 adequately accommodate Plaintiff’s medical conditions stemming from what he reports as 6 ulcerative colitis (“UC”) and a C. diff. infection. 7 For the reasons discussed, the Court finds that the FAC’s allegations meet the “low 8 threshold” set for sua sponte screening in this context and DIRECTS the U.S. Marshal to 9 effect service of process of the FAC upon the Defendants. 10 I. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 11 A. Standard of Review 12 Because Plaintiff is a prisoner and is proceeding IFP, his FAC requires preliminary 13 screening under 28 U.S.C. §§ 1915(e)(2) and 1915A(b). “On review, the court shall . . . 14 dismiss the complaint, or any portion of the complaint,” if it “(1) is frivolous, malicious, 15 or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from 16 a defendant who is immune from such relief.” Olivas v. Nevada ex rel. Dept. of Corr., 856 17 F.3d 1281, 1283 (9th Cir. 2017) (quoting 28 U.S.C. § 1915A(b)); see also Hebrard v. 18 Nofziger, 90 F.4th 1000, 1006–07 (9th Cir. 2024) (quoting Lopez v. Smith, 203 F.3d 1122, 19 1126‒27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2))). “The standard for 20 dismissal for prisoner claims at screening is the ‘same as the Federal Rule of Civil 21 Procedure 12(b)(6) standard for failure to state a claim.’” Long v. Sugai, 91 F.4th 1331, 22 1336 (9th Cir. 2024) (quoting Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012)); 23 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (Section 1915A screening 24 “incorporates the familiar standard applied in the context of failure to state a claim under 25 Federal Rule of Civil Procedure 12(b)(6).”). 26 Federal Rule of Civil Procedure 8 describes “what information a plaintiff must 27 provide about the merits of his claim at the outset of litigation.” Berk v. Choy, 607 U.S. 28 187, 195 (2026). Thus, Rules 8 and 12(b)(6) together require a complaint to “contain 1 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 2 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. 3 Twombly, 550 U.S. 544, 570 (2007)). “Iqbal requires attention to the pleading of both facts 4 and law.” Gibson v. City of Portland, 165 F.4th 1265, 1287 (9th Cir. 2026). While detailed 5 factual allegations are not needed, “[t]hreadbare recitals of the elements of a cause of 6 action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 7 To state a claim under § 1983, a plaintiff must plausibly allege “both (1) deprivation 8 of a right secured by the Constitution and laws of the United States, and (2) that the 9 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 10 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 11 B. Plaintiff’s Allegations 12 Plaintiff’s allegations all relate to Defendants’ response, or lack thereof, to what he 13 alleges is a chronic medical condition, ulcerative colitis (“UC”). [See FAC at 4, 7.] UC is 14 “the most common type” of inflammatory bowel disease, “a group of lifelong diseases that 15 cause inflammation . . . of the intestine.” CDC, Ulcerative Colitis Basics, June 21, 2024, 16 https://www.cdc.gov/inflammatory-bowel-disease/about/ulcerative-colitis-uc-basics.html 17 (last visited Aug. 17, 2026).1 18 According to Plaintiff, he has suffered UC since before he was transferred to his 19 present institution, RJD. [FAC 7.] His UC then played a role in his contracting C. diff., 20 [FAC at 4, 7], which is short for Clostridioides difficile, a bacterium “that causes diarrhea 21 and inflammation of the colon.” CDC, About C. diff., May 13, 2026, 22 https://www.cdc.gov/c-diff/about/ (last visited Aug. 17, 2026). 23 Plaintiff claims these conditions cause constant incontinence and abdominal pain. 24 [FAC at 7.] Plaintiff further asserts that C. Diff is highly contagious and easier to spread 25 and recontract (for him) due to his UC. [Id. at 5.] He contends that sharing a cell while 26 27 1 Courts can take judicial notice of well-known medical facts. United States v. Howard, 381 F.3d 873, 28 879–80 & n.7 (9th Cir. 2004). 1 having this highly contagious bacterial infection and severe incontinence causes him 2 “constant embarrassment and mental anguish.” [Id. at 6.] Hence, he requested that 3 Defendants house him in a one-man cell. [Id. at 4.] 4 Before his transfer to RJD, Plaintiff claims the California Medical Facility in 5 Stockton had awarded him single-cell accommodation. [Id. at 1, 7.] But when Plaintiff 6 arrived at RJD, each named Defendant “denied Plaintiff [reasonable] accommodation by 7 refusing to accommodate him with medical[ly] necessary single-cell housing which would 8 prevent Plaintiff from sharing toilets with other inmates which causes him to exac[e]rbate 9 his C. diff medical condition.” [Id. at 4.] 10 Plaintiff further claims that when he was denied single-cell accommodation upon 11 transfer, he suffered a mental health crisis that included suicidal ideations. [Id. at 7.] 12 Plaintiff also claims Defendants denied Plaintiff “access to mental health services and 13 programs.” [Id. at 4.] More specifically, Plaintiff claims those Defendants who are 14 physicians, Blaisdell and Clayton, knew of his serious health condition but refused to 15 authorize single-cell accommodation. [Id. at 5.] Then, rather than addressing Plaintiff’s 16 needs, he alleges Sgt. Perez sent him to the Restrictive Housing Unit (“RHU”) “for refusing 17 double-cell housing which is prohibited [and] caused more psychological harm, and 18 [Perez] did it in a discriminatory manner due to Plaintiff’s disability.” [Id. at 5.] Finally, 19 Plaintiff maintains that “[e]ach named Defendant was informed by the Plaintiff of his 20 medical condition and how it caused him mental anguish [to be placed in double-cell 21 housing,] yet” Defendants “refused to accommodate him” even when Defendants “have 22 made such accommodations for other similarly situated individuals.” [Id. at 6.] 23 Based on these factual allegations, the FAC lists four causes of action: (1) violation 24 of the Americans with Disabilities Act (“ADA”), [id. at 4]; (2) violation of the 25 Rehabilitation Act (“RA”), [id. at 5]; (3) violation of the Eighth Amendment’s prohibition 26 on cruel and unusual punishments, [id. at 6]; and (4) violation of the Fourteenth 27 Amendment’s equal protection guarantee, [id. at 7]. In addition to $1,500,000 in 28 compensatory and punitive damages, Plaintiff seeks injunctive relief preventing 1 Defendants from denying him “single-cell” accommodation and an order dismissing prior 2 disciplinary actions for his “refusing to accept housing assignments” with cellmates. [Id. 3 at 7.] 4 C. Discussion 5 Plaintiff’s FAC names eight defendants in their individual and official capacities: 6 Jeff Macomber (CDCR Secretary), Danielle Concepcion-Rosengren (RJD Psychology 7 Intern), William Holloway (RJD Clinical Social Worker), Sgt. Perez (RJD Correctional 8 Sergeant), David J. Clayton (RJD Physician), Esguerra (CC1 Counselor), the CDCR, and 9 Matthew Blaisdell (RJD Physician). Liberally construing Plaintiff’s FAC, the Court finds 10 it satisfies the “low threshold” set for sua sponte screening under 28 U.S.C. §§ 1915(e)(2) 11 and 1915A(a). Wilhelm, 680 F.3d at 1123. 12 1. ADA and RA Claims 13 Title II of the ADA, 42 U.S.C. § 12102, prohibits disability-based discrimination. 14 Lowell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II applies to inmates within 15 state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 210 (1998); see 16 also Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997). 17 To state a claim under Title II of the ADA, Plaintiff must plausibly allege: (1) he is 18 an individual with a disability; (2) he is otherwise qualified to participate in or receive the 19 benefit of a public entity’s services, programs, or activities; (3) he was either excluded from 20 participation in or denied the benefits of the public entity’s services, programs, or activities, 21 or was otherwise discriminated against by the public entity; and (4) such exclusion, denial 22 of benefits, or discrimination was by reason of his disability. Vos v. City of Newport Beach, 23 892 F.3d 1024, 1036 (9th Cir. 2018); O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 24 (9th Cir. 2007). 25 To state a claim under § 504 of the RA, a plaintiff must plausibly allege he or she 26 was: (1) an individual with a disability within the meaning of the RA; (2) otherwise 27 qualified to receive the benefit; (3) denied the benefits of the program solely by reason of 28 his or her disability; and (4) the program receives federal financial assistance. Lovell v. 1 Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Because of the similarities between the 2 laws and remedies available, a complaint that properly states a claim under Title II of the 3 ADA also states a claim under § 504 of the RA. Zukle v. Regents of the Univ. of Cal., 166 4 F.3d 1041, 1045 n.11 (9th Cir. 1999). 5 Here, Plaintiff’s factual allegations focus on the denial of single-cell 6 accommodations for UC- and C. diff.-related symptoms, and he alleges he was denied the 7 accommodation and placed in RHU confinement “in a discriminatory manner due to [his] 8 disability.” [FAC at 5.] The FAC therefore includes sufficient factual allegations to 9 survive the “low threshold” of the screening required by 28 U.S.C. § 1915A(b) with respect 10 to a claim under the ADA and the RA against the public entity Defendants CDCR and its 11 Secretary. See Thompson v. Hill, No. 24-CV-00357-MMA (DDL), 2025 WL 1507155, at 12 *3–4 (S.D. Cal. May 27, 2025) (concluding that plaintiff had met initial ADA/RA 13 screening threshold for claims against public entity defendants where he alleged: (1) 14 incontinence warranted single-cell placement to avoid conflict with cellmate who had 15 violently confronted plaintiff due to his disability, and (2) he had been denied the 16 accommodation on the basis of his disability); Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 17 642 (9th Cir. 2018) (Courts must “where the petitioner is pro se, [and] particularly in civil 18 rights cases, . . . construe the pleadings liberally and to afford the petitioner the benefit of 19 any doubt.”) (citations omitted)). To the extent Plaintiff seeks to hold any of 20 the individual Defendants liable under the ADA, however, he fails to state a 21 claim. See City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 610 (2015) (“Only 22 public entities are subject to Title II[.]”). 23 2. Eighth Amendment Claim 24 Prisoners do not have an Eighth Amendment right to be housed in a single cell. See 25 Rhodes v. Chapman, 452 U.S. 337, 347–48 (1981) (indicating that double-celling does not 26 violate the Eighth Amendment unless it amounts to the unnecessary and wanton infliction 27 of pain). “The Constitution does not mandate comfortable prisons, but neither does it 28 permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (cleaned up). The 1 Eighth Amendment’s prohibition against cruel and unusual punishment imposes a duty on 2 prison officials to “provide humane conditions of confinement; prison officials must ensure 3 that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take 4 reasonable measures to guarantee the safety of the inmates.’” Id. (quoting Hudson v. 5 Palmer, 468 U.S. 517, 526–27 (1984)). 6 “[A] prison official violates the Eighth Amendment only when two requirements are 7 met. First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer, 8 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, Plaintiff 9 must allege that the prison official he seeks to hold liable had a “sufficiently culpable state 10 of mind,” that is, “one of ‘deliberate indifference’ to inmate health or safety.” Id. (quoting 11 Wilson, 501 U.S. at 302–03). 12 Here, Plaintiff states a cognizable claim for deliberate indifference to his health and 13 safety based on Plaintiff’s allegations that the named individual RJD defendants, while 14 knowing of Plaintiff’s condition, refused to provide “him with medical[ly] necessary 15 single-cell housing which would prevent Plaintiff from sharing toilets with other inmates” 16 causing him to contract C. diff. [FAC at 4]; [see also FAC at 6] (alleging that cell sharing 17 with Plaintiff’s severe incontinence caused him “constant embarrassment and mental 18 anguish”); [FAC at 4, 7] (alleging that when denied single-cell accommodation, Plaintiff 19 experienced a mental health crisis that included suicidal ideations, for which treatment was 20 not provided). For these reasons, the Court finds Plaintiff’s FAC is sufficient to survive 21 the “low threshold” of the screening required by 28 U.S.C. § 1915A(b) with respect to a 22 claim for relief under the Eighth Amendment. See Iqbal, 556 U.S. at 678; cf. Thompson, 23 2025 WL 1507155 at *6 (plausible deliberate indifference claim pleaded where Defendants 24 knew incontinent plaintiff was at risk of attack from cellmate); Maney v. Brown, 516 F. 25 Supp. 3d 1161, 1179 (D. Or. 2021) (collecting cases recognizing prison officials’ duty to 26 protect inmates from exposure to communicable diseases under the Eighth Amendment). 27 3. Fourteenth Amendment Equal Protection Claim 28 The Fourteenth Amendment provides that no state shall “deny to any person within 1 its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV. To state an 2 equal protection claim, Plaintiff must plausibly allege that prison officials: (1) intentionally 3 discriminated against him (2) based on his membership in a protected class. Hartmann v. 4 Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013). “Intentional 5 discrimination means that a defendant acted at least in part because of a plaintiff’s protected 6 status.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003). Because the disabled do 7 not constitute a suspect class for equal protection purposes, a policy that purposely treats 8 the disabled differently from the non-disabled need only be rationally related to legitimate 9 legislative goals. Lee v. City of Los Angeles, 250 F.3d 668, 686–67 (9th Cir. 2001), 10 overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 11 2002). However, the Supreme Court has also recognized equal protection claims may be 12 brought by a “‘class of one,’ where the plaintiff alleges that she has been intentionally 13 treated differently from others similarly situated and that there is no rational basis for the 14 difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citations 15 omitted). 16 Here, Plaintiff alleges that Defendants denied him single-cell placement “in a 17 discriminatory manner due to Plaintiff’s disability,” [FAC at 5], and did so even though he 18 had been previously granted single-cell accommodations due to his UC and C-diff 19 diagnosis at CMF Stockton and despite the fact that Defendants “have made such 20 accommodations for other similarly situated individuals.” [Id. at 6.] The Court therefore 21 finds Plaintiff’s FAC sufficient to survive the “low threshold” of the screening required by 22 28 U.S.C. § 1915A(b) with respect to an equal protection claim. See, e.g., Gemza v. Duarte, 23 No. 25-cv-03461-PHX-SMM (ASB), 2026 WL 1724132, at *7 (D. Ariz. Apr. 24, 2026) 24 (finding prisoner’s disciplinary sanctions based on his inability to “fishhook,” i.e., 25 manipulate his mouth with his fingers in order to show guards he was not hiding 26 medication, sufficient to plausibly support a class-of-one disability-based equal protection 27 claim for relief), report and recommendation adopted, 2026 WL 1703716 (D. Ariz. June 28 12, 2026); cf. Denny v. Oconto Police Dept., 2013 WL 441525, at *3 (E.D. Wis. 2013) 1 (class-of-one equal protection claim against police officers surpassed 28 U.S.C. § 1915A 2 screening threshold where the complaint did not reveal on its face any rational basis for 3 defendants’ aggressive investigation of the plaintiff); Shaud v. Sugarloaf Twp. Sup’rs, No. 4 3:07-cv-1212, 2008 WL 313849, at *5 (M.D. Pa. Feb. 4, 2008) (service of complaint 5 allowed when screening court’s “generous reading of the facts . . . lead[] . . . to the 6 conclusion that [indigent] plaintiff’s equal protection claim . . . [was] not baseless or 7 frivolous” where plaintiff alleged “the police’s unwillingness to enforce the laws when he 8 complained was animus towards him because of his disability”). 9 D. Summary 10 As liberally construed, the Court finds the ADA and RA reasonable accommodation 11 discrimination claims as alleged against Defendant CDCR and Secretary Macomber in his 12 official capacity, and the FAC’s Eighth and Fourteenth Amendment individual capacity 13 claims2 against Defendants Concepcion-Rosengren, Holloway, Perez, Clayton, Esguerra, 14 and Blaisdell meet the “low threshold” set for sua sponte screening pursuant to 28 U.S.C. 15 §§ 1915(e)(2) and 1915A(b), and are thus “sufficient to warrant . . . an answer.” Wilhelm, 16 680 F.3d at 1123. Accordingly, the Court will order the U.S. Marshal to effect service of 17 process upon these Defendants on Plaintiff’s behalf. See 28 U.S.C. § 1915(d) (“The 18 officers of the court shall issue and serve all process, and perform all duties in [IFP] 19 cases.”); Fed. R. Civ. P. 4(c)(3) (“[T]he court may order that service be made by a United 20 States marshal or deputy marshal . . . if the plaintiff is authorized to proceed in forma 21 pauperis under 28 U.S.C. § 1915.”). 22 II. CONCLUSION 23 For the reasons discussed, the Court: 24 1) DIRECTS the Clerk to issue a summons as to Plaintiff’s Amended Complaint 25 26 2 To the extent Plaintiff’s FAC seeks damages against these Defendants in their “official capacity” 27 however, [see FAC at 2–3], his claims may not proceed as they are barred by the Eleventh Amendment. See Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016) (“The Eleventh Amendment bars claims 28 for damages against a state official acting in his or her official capacity.”). 1 upon Defendants MACOMBER, CONCEPCION-ROSENGREN, HOLLOWAY, PEREZ, 2 CLAYTON, ESGUERRA, CDCR, and BLAISDELL, and forward it to Plaintiff along with 3 eight blank U.S. Marshal Form 285s. In addition, the Clerk will provide Plaintiff with 4 certified copies of this Order, the Court’s March 18, 2026 Order granting Plaintiff leave to 5 proceed IFP, [Doc. No. 9], certified copies of his Amended Complaint, [Doc. No. 10], and 6 the summons so that he may serve these Defendants. Upon receipt of this “IFP Package,” 7 Plaintiff must complete the Form 285s as completely and accurately as possible, include 8 an address where each named Defendant may be found and/or subject to service, and return 9 them to the United States Marshal according to the instructions the Clerk provides in the 10 letter accompanying his IFP package. 11 2) ORDERS the U.S. Marshal to serve a copy of Plaintiff’s Amended Complaint 12 and summons upon Defendants MACOMBER, CONCEPCION-ROSENGREN, 13 HOLLOWAY, PEREZ, CLAYTON, ESGUERRA, CDCR, and BLAISDELL as directed 14 by Plaintiff on the USM Form 285s provided. Costs of service will be advanced by the 15 United States. See 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 16 3) ORDERS Defendants MACOMBER, CONCEPCION-ROSENGREN, 17 HOLLOWAY, PEREZ, CLAYTON, ESGUERRA, CDCR, and BLAISDELL, once 18 served, to reply to Plaintiff’s FAC, and any subsequent pleading Plaintiff files in this matter 19 in which each Defendant is named as a party within the time provided by the applicable 20 provisions of Federal Rules of Civil Procedure 12(a) and 15(a)(3). See 42 U.S.C. 21 § 1997e(g)(2) (While defendants may occasionally be permitted to “waive the right to reply 22 to any action brought by a prisoner confined in any jail, prison, or other correctional facility 23 under section 1983,” once the Court has conducted its sua sponte screening, defendants are 24 required to respond.). 25 4) ORDERS Plaintiff, after service, to serve upon Defendants, or if appearance 26 has been entered by counsel, upon Defendants’ counsel, a copy of every further pleading, 27 motion, or other document submitted for the Court’s consideration pursuant to Fed. R. Civ. 28 P. 5(b). Plaintiff must include with every original document he seeks to file, a certificate | || stating the manner in which a true and correct copy of that document has been served on 2 ||the Defendant or Defendants’ counsel, and the date of that service. See S.D. Cal. CivLR 3 Any document received by the Court which has not been properly filed with the Clerk 4 Court or which fails to include a Certificate of Service upon Defendant or Defendants’ 5 ||}counsel may be disregarded. 6 Itis SO ORDERED. 7 ||Dated: September 21, 2026 ( (6 — 8 Hon. Cathy Ann Bencivengo 9 United States District Judge 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11