(PS) Castaneda v. 6939 Fair Oaks Blvd TIC LLC

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
CHERRISH CASTANEDA,
Plaintiff,
v.
6939 FAIR OAKS BLVD TIC LLC,
Defendant.
No. 2:25-cv-02804-TLN-SCR
ORDER AND FINDINGS AND
RECOMMENDATIONS
Plaintiff is proceeding pro se in this matter, which is referred to the undersigned pursuant
to Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Plaintiff filed her complaint on September
29, 2025, and has filed five motions. Plaintiff filed a motion for leave to proceed in forma
pauperis (“IFP”) and a declaration, including a statement of income and expenses, averring she is
unable to pay the costs of these proceedings. See 28 U.S.C. § 1915(a)(1). The motion to proceed
IFP will therefore be granted. However, for the reasons provided below, the Court finds
Plaintiff’s complaint is legally deficient and will grant Plaintiff leave to file an amended
complaint. The Court herein addresses the remaining motions and recommends the motion for
temporary restraining order be denied.
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I. SCREENING
A. 	Legal Standard
The federal IFP statute requires federal courts to dismiss a case if the action is legally
“frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). In
reviewing the complaint, the Court is guided by the requirements of the Federal Rules of Civil
Procedure. The Federal Rules of Civil Procedure are available online at www.uscourts.gov/rules-
policies/current-rules-practice-procedure/federal-rules-civil-procedure.
Under the Federal Rules of Civil Procedure, the complaint must contain (1) a “short and
plain statement” of the basis for federal jurisdiction (that is, the reason the case is filed in this
court, rather than in a state court), (2) a short and plain statement showing that plaintiff is entitled
to relief (that is, who harmed the plaintiff, and in what way), and (3) a demand for the relief
sought. Fed. R. Civ. P. 8(a). Plaintiff’s claims must be set forth simply, concisely and directly.
Fed. R. Civ. P. 8(d)(1). Forms are available to help pro se plaintiffs organize their complaint in
the proper way. They are available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200),
Sacramento, CA 95814, or online at www.uscourts.gov/forms/pro-se-forms.
A claim is legally frivolous when it lacks an arguable basis either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the
court will (1) accept as true all of the factual allegations contained in the complaint, unless they
are clearly baseless or fanciful, (2) construe those allegations in the light most favorable to the
plaintiff, and (3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von
Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert.
denied, 564 U.S. 1037 (2011).
The court applies the same rules of construction in determining whether the complaint
states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court
must accept the allegations as true); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (court must
construe the complaint in the light most favorable to the plaintiff). Pro se pleadings are held to a
less stringent standard than those drafted by lawyers. Erickson, 551 U.S. at 94. However, the

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court need not accept as true legal conclusions, even if cast as factual allegations. See Moss v.
U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). A formulaic recitation of the elements of
a cause of action does not suffice to state a claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555-57 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
To state a claim on which relief may be granted, the plaintiff must allege enough facts “to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity
to amend, unless the complaint’s deficiencies could not be cured by amendment. See Akhtar v.
Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012).
B. 	The Complaint
Plaintiff’s complaint names one Defendant, 6939 Fair Oaks Blvd TIC LLC (herein
“Defendant”). Defendant is alleged to be the property owner and responsible for the management
and operations of Skylark apartments. ECF No. 1 at ¶ 6. Plaintiff is a tenant at Skylark. Id. at ¶
4. Plaintiff alleges this Court has jurisdiction because she is bringing a claim for First
Amendment retaliation under 42 U.S.C. § 1983. Id. at ¶ 1. Plaintiff alleges the Court has
supplemental jurisdiction over her related state law claims concerning habitability. Id. at ¶ 2.
Plaintiff alleges her apartment was burglarized in March 2025, and that on May 2, 2025
she reported plumbing failures including sewage leaks, water damage, and mold. Id. at ¶¶ 8-9.
Plaintiff then filed a public health complaint with Sacramento County around May 26, 2025. Id.
at ¶ 10. Thereafter, on June 16, 2025, Defendant filed an eviction action. Id. at ¶ 11. Plaintiff
alleges that in June/July 2025, plumbing related problems continued, and that her children
became sick. Id. at ¶¶ 12-13. On September 8, 2025, Plaintiff issued a “formal lease termination
notice” citing constructive eviction. Id. at ¶ 15.
Plaintiff asserts eight causes of action, two of which are based in federal law. In Count I,
Plaintiff alleges First Amendment retaliation and claims that Defendant retaliated against her
when she reported the plumbing problems to Sacramento County’s health department. Id. at ¶¶

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17-19. In Count VII, Plaintiff alleges violation of the Americans with Disabilities Act (“ADA”),
that her health was impaired by unsafe conditions, and that Defendant “failed to accommodate
disabilities and instead retaliated.” Id. at ¶¶ 32-34.
Plaintiff seeks a declaratory judgment that her rights were violated, and also injunctive
relief “halting eviction, preventing retaliation, and compelling repairs.” ECF No. 1 at 4. Plaintiff
additionally seeks monetary damages.
C. 	Analysis
Plaintiff’s complaint contains a jurisdictional statement and request for relief. However, it
fails to contain a “short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). In order to state a claim under section 1983, a plaintiff is required
to plead that (1) a defendant acting under color of state law, (2) deprived plaintiff of rights
secured by the Constitution or federal statutes. Benavidez v. County of San Diego, 993 F.3d 1134,
1144 (9th Cir. 2021). Defendant is Plaintiff’s landlord and is alleged to own the Skylark
Apartments. ECF No. 1 at ¶ 6. There is no allegation that the company which owns and manages
Plaintiff’s apartment complex is a state actor or was acting under color of state law. Generally,
private parties are not acting under color of state law. See O’Handley v. Weber, 62 F.4th 1145,
1155-56 (9th Cir. 2023) (stating that only in “exceptional cases” will a private entity be treated as
a state actor for constitutional purposes).
If Plaintiff could successfully plead state action, she would also need to plead facts to
plausibly meet the elements of her claim for First Amendment retaliation. Generally, a plaintiff
must show: 1) she engaged in a constitutionally protected activity; 2) defendants’ actions would
chill a person of ordinary firmness from continuing to engage in protected conduct; and 3) the
protected activity was a substantial or motivating factor in defendants’ conduct. Sampson v.
County of Los Angeles, 974 F.3d 1012, 1019 (9th Cir. 2020). A plaintiff must establish that
defendant’s retaliatory animus was the but-for cause of her injury, meaning that the adverse
action against her would not have been taken absent retaliatory motive. Id. (internal citations and
quotations omitted).
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Plaintiff alleges that she made a complaint to the Sacramento County health department,
and that Defendant, her landlord, retaliated. ECF No. 1 at ¶¶ 17-19. There is no claim that the
health department retaliated against Plaintiff in response to her complaint. Rather, the allegation
is that her landlord, a private actor did. Plaintiff fails to state a claim of First Amendment
retaliation.
Plaintiff’s other federal claim is under the ADA. The ADA allegations are conclusory.
Plaintiff alleges her health was impaired by unsafe conditions on the property, and Defendant
“failed to accommodate disabilities and instead retaliated.” ECF No. 1 at ¶¶ 32-34. Plaintiff does
not allege under what Title of the ADA she brings her claim. The ADA has been described as
containing a “broad mandate” designed to “remedy widespread discrimination against disabled
individuals.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-75 (2001). “To effectuate its
sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of
public life, among them employment (Title I of the Act), public services (Title II), and public
accommodations (Title III).” Id. at 675. Plaintiff does not cite to any of these provisions, nor
does she clearly allege that she has a disability, but rather seems to claim that the housing
conditions damaged her health. There are no factual allegations explaining what reasonable
accommodation was denied, or the manner of retaliation. In other portions of the complaint,
Plaintiff appears to claim that the retaliatory action was the filing of an eviction action. Id. at ¶
11. However, Plaintiff also alleges that she gave notice she was terminating the lease based on
her own belief that she had been constructively evicted. Id. at ¶15.
Additionally, “[r]esidential apartment complexes generally do not do not constitute public
accommodations within the meaning of the [ADA].” Estavillo v. Cortese, No. 23-CV-04032-
VKD, 2024 WL 2808651, at *3 (N.D. Cal. May 30, 2024) (collecting cases); see also
Cook v. Doe, No. 21-CV-01720-JSC, 2021 WL 2444959, at *2 (N.D. Cal. May 17, 2021);
(“[Plaintiff] fails to state a valid ADA claim because her residential apartment building is not a
place of public accommodation covered by the ADA’s disability discrimination laws.”).
Plaintiff fails to state a federal claim for First Amendment retaliation or for violation of
the ADA. The failure to state a federal claim may implicate the Court’s jurisdiction. If a federal

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claim is “obviously frivolous,” insubstantial, implausible, or completely devoid of merit then the
Court lacks subject matter jurisdiction. Cook Inlet Region, Inc. v. Rude, 690 F.3d 1127, 1131 (9th
Cir. 2012). However, “[a]ny non-frivolous assertion of a federal claim suffices to establish
federal question jurisdiction, even if that claim is later dismissed on the merits.” Id. Although
Plaintiff fails to allege state action on the part of Defendant, and the ADA claim is entirely
conclusory, the Court does not find at this point that the claim is frivolous, and thus the Court has
subject matter jurisdiction.
The in forma pauperis statute, 28 U.S.C. § 1915(e) provides that this Court “shall dismiss
the case at any time” if it determines that the action fails to state a claim on which relief may be
granted. The Court finds that Plaintiff fails to state a federal claim. The Court will not screen
Plaintiff’s remaining state law causes of action, as they assert claims under state law and the
Court would decline supplemental jurisdiction if the federal claims are dismissed. The decision
of whether to exercise supplemental jurisdiction over state law claims after the federal claims
have been dismissed lies within the district court's discretion. See Foster v. Wilson, 504 F.3d
1046, 1051-52 (9th Cir. 2007). Generally, when federal claims are dismissed well before trial,
pendent state law claims should be dismissed as well. See Campos v. Fresno Deputy Sheriff's
Assoc., 535 F.Supp.3d 913, 930 (E.D. Cal. 2021), citing Religious Tech. Ctr. v. Wollersheim, 971
F.2d 364, 367-68 (9th Cir. 1992).
The Court has considered that Plaintiff is proceeding pro se and a pro se litigant should be
given leave to amend unless it is absolutely clear that the deficiencies cannot be cured by
amendment. Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). As Plaintiff’s allegations are
at times conclusory, the Court cannot conclude that leave to amend would be futile. Rather than
recommending dismissal of the action, the undersigned will provide Plaintiff an opportunity to
amend the complaint to allege sufficient factual content to state a claim for relief that is plausible
on its face.
II. AMENDING THE COMPLAINT
If plaintiff chooses to amend the complaint, it must contain a short and plain statement of
Plaintiff’s claims. The allegations of the complaint must be set forth in sequentially numbered

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paragraphs, with each paragraph number being one greater than the one before, each paragraph
having its own number, and no paragraph number being repeated anywhere in the complaint.
Each paragraph should be limited “to a single set of circumstances” where possible. Rule 10(b).
As noted above, forms are available to help plaintiffs organize their complaint in the proper way.
They are available at the Clerk’s Office, 501 I Street, 4th Floor (Rm. 4-200), Sacramento, CA
95814, or online at www.uscourts.gov/forms/pro-se-forms.
The amended complaint must not force the Court or the defendant to guess at what is
being alleged against whom. See McHenry v. Renne, 84 F.3d 1172, 1177-80 (9th Cir. 1996)
(affirming dismissal of a complaint where the district court was “literally guessing as to what
facts support the legal claims being asserted against certain defendants”). The amended
complaint should contain specific allegations as to the actions of the named defendant rather than
making conclusory allegations.
Also, the amended complaint must not refer to a prior pleading in order to make plaintiff’s
amended complaint complete. An amended complaint must be complete in itself without
reference to any prior pleading. Local Rule 220. This is because, as a general rule, an amended
complaint supersedes the original complaint. See Pacific Bell Tel. Co. v. Linkline
Communications, Inc., 555 U.S. 438, 456 n.4 (2009) (“[n]ormally, an amended complaint
supersedes the original complaint”) (citing 6 C. Wright & A. Miller, Federal Practice &
Procedure § 1476, pp. 556-57 (2d ed. 1990)). Therefore, in an amended complaint, as in an
original complaint, each claim and the involvement of each defendant must be sufficiently
alleged.
Plaintiff’s amended complaint must address the issues set forth herein. It must plead facts
demonstrating that Defendant was a state actor or acting under color of law. Plaintiff must allege
additional facts to support her ADA claim, including whether she is an individual with a
disability, what reasonable accommodation she requested, and in what manner and at what time
did Defendant retaliate against her for exercising her rights under the ADA. Plaintiff must allege
enough facts in support of her claims to state a claim to relief that is plausible on its face.
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III. Plaintiff’s Motion for Temporary Restraining Order
Plaintiff has filed a motion seeking a temporary restraining order (“TRO”) and
preliminary injunction. ECF No. 4. Plaintiff requests that the Court issue a TRO that enjoins
Defendant from proceeding with eviction and halts further retaliation. ECF No. 4 at 2. Plaintiff
has submitted a declaration in support of her motion. ECF No. 4 at 3-4. Plaintiff has also
submitted several exhibits in support of her motion. Plaintiff submitted an email she sent on May
21, 2025, stating that all of the drains in her apartment were backing up and clogged. Id. at 12.
On May 27, 2025, Plaintiff submitted an email titled “Unit 59 Habitability Violations and Legal
Escalation Notice.” Id. at 15. On September 8, 2025, Plaintiff submitted an email to her landlord
stating that she considered herself constructively evicted, and stating: “I hereby rescind and
terminate the lease effective immediately due to your material breaches and unlawful conduct.”
Id. at 43.
A TRO is an extraordinary measure of relief that a federal court may impose without
notice to the adverse party if, in an affidavit or verified complaint, the movant “clearly show[s]
that immediate and irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A); see also Winter v. NRDC, Inc.,
555 U.S. 7, 22, 129 S. Ct. 365, 375-76 (2008). A TRO may only be granted if the moving party
satisfies one of two legal standards. A plaintiff seeking a TRO must generally establish all four
of the following elements: (1) likely success on the merits of his underlying case; (2) he is likely
to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in
his favor; and (4) an injunction is in the public interest. Garcia v. Google, Inc., 786 F.3d 733,
740 (9th Cir. 2015). A plaintiff may also be entitled to a TRO by showing serious questions
going to the merits, irreparable harm, and a balance of equities that tips strongly in the plaintiff's
favor. All. For the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).
While the undersigned sympathizes with any tenant living in an uninhabitable dwelling,
Plaintiff has not demonstrated a likelihood of success on the merits. As set forth above, the
complaint fails to state a federal claim. At a minimum, Plaintiff is not entitled to a TRO because
she has not stated a federal claim upon which relief can be granted. Failure to state a claim

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dooms a motion for preliminary injunctive relief. See Arc of Cal. v. Douglas, 757 F.3d 975, 993–
94 (9th Cir.2014) (citing E & J Gallo Winery v. Andina Licores S.A., 446 F.3d 984, 990 (9th
Cir.2006)).
Additionally, although Plaintiff has made serious allegations concerning plumbing
failures, sewage leaks, and mold, she has not demonstrated the need for immediate relief or
irreparable harm. Plaintiff alleges that she began experiencing these plumbing issues on May 2,
2025, and she did not file the motion for TRO until nearly five months later. She also pleads that
the day before she filed this lawsuit, “Sacramento County code enforcement called to have
plumbing fixed.” ECF No. 1 at ¶ 16. Undue delay in seeking injunctive relief may serve as
grounds for denying a temporary restraining order. Brewer v. Loancare, LLC, No. 2:25-cv-
01157-DC-CSK, 2025 WL 1400288, *2 (E.D. Cal. May 14, 2025); see also Local Rule 231(b)
(“[T]he Court may conclude that the delay constitutes laches or contradicts the applicant's
allegations of irreparable injury and may deny the motion solely on either ground.”).
Plaintiff has not demonstrated a likelihood of success on the merits or that she is likely to
suffer immediate and irreparable harm. The Court recommends the motion for TRO be DENIED.
IV. 	Plaintiff’s Miscellaneous Motions
A. 	Request for ADA Accommodations (ECF No. 3)
The motion states that Plaintiff requests “reasonable accommodation due to medically
documented impairments resulting from landlord negligence and unsafe housing conditions.”
ECF No. 3 at 1. Plaintiff requests the Court “provide any necessary communication, hearing
adjustments, or grace for extensions of time” in light of her disability. Id. Plaintiff attaches a
letter stating that she has a mental health condition and has been in “intermittent treatment” since
2015. Id. at 3. Plaintiff’s motion does not seek specific relief, accordingly the motion is denied
without prejudice. If Plaintiff requires accommodation at a future hearing, or an extension of
time, she may seek such relief in an appropriate motion.
B. Request for Reasonable Accommodations (ECF No. 5)
Plaintiff filed this motion just two days after filing her original motion requesting
accommodation, and this motion does seek more specific relief. Specifically, Plaintiff requests

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that all hearings be held in person as opposed to via remote video conference due to Plaintiff’s
sensory-processing issues and past trauma. ECF No. 5 at 2. No hearings are currently set, but the
Court would be inclined to grant such request in the event a hearing is scheduled. Plaintiff also
requests a blanket order allowing her at least 30 days to respond to any deadlines. The Court will
not grant this blanket request, but will grant Plaintiff additional time to file any objections to these
Findings & Recommendations. Moreover, Plaintiff may seek additional time via motion as
necessary in the future. Plaintiff’s other requests pertain to accommodations for in-court
proceedings are held, or state she “reserves the right to request additional accommodations” in the
future. The motion is granted as to the request not to be required to appear via video, but is
otherwise denied without prejudice to Plaintiff making a renewed motion when, and if, in-court
proceedings are scheduled.
C. Motion Requesting Service of Process (ECF No. 6)
Plaintiff requests that the Court direct the U.S. Marshal to effect service of her
complaint and summons. This motion is denied as premature and unnecessary. If Plaintiff files a
first amended complaint, and that complaint passes screening under 28 U.S.C. § 1915(e), then the
Court will direct service.
V. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) is GRANTED;
2. Plaintiff’s request for accommodation (ECF No. 3) is DENIED without prejudice to
seeking specific relief in a renewed motion;
3. Plaintiff’s second motion requesting accommodations (ECF No. 5) is GRANTED IN
PART and DENIED IN PART as set forth herein;
4. Plaintiff’s motion requesting the Marshal serve process (ECF No. 6) is DENIED;
5. Plaintiff shall be allowed 30 days from the date of this order to file a first amended
complaint that addresses the pleading deficiencies set forth herein. If Plaintiff fails to timely
comply with this order, the undersigned may recommend that this action be dismissed.
6. Alternatively, if Plaintiff no longer wishes to pursue this action, Plaintiff may file a

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notice of voluntary dismissal of this action pursuant to Rule 41 of the Federal Rules of Civil
Procedure.
IT IS FURTHER RECOMMENDED THAT:
1. Plaintiff’s Motion for temporary restraining order (ECF No. 2) be DENIED.
These findings and recommendations are submitted to the United States District Judge
assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30)
days after being served with these findings and recommendations, Plaintiff may file written
objections with the court. Such document should be captioned “Objections to Magistrate Judge’s
Findings and Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file
objections within the specified time may waive the right to appeal the District Court’s order.
Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
SO ORDERED.
DATED: October 23, 2024