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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
JOSE CAMARGO ALEJO,
#A089-861-944,
Plaintiff,
vs.
L. MILETO; A. HETTER;
C. LaROSE; J. SOTO,
Defendants.
Case No.: 3:26-cv-00251-JES-LR
ORDER: (1) GRANTING MOTION
TO PROCEED IN FORMA
PAUPERIS (2) DENYING MOTION
FOR TEMPORARY RESTRAINING
ORDER AND PRELIMINARY
INJUNCTION AND (3) DISMISSING
CIVIL ACTION FOR FAILURE TO
STATE A CLAIM PURSUANT TO
28 U.S.C. § 1915(e)(2)(B)(ii), (iii)
[ECF Nos. 2, 3]
Plaintiff Jose Camargo Alejo, currently in Immigration and Customs Enforcement
(“ICE”) custody at Otay Mesa Detention Center (“OMDC”) in San Diego, has filed a civil
rights complaint pursuant to 42 U.S.C. § 1983 alleging Fifth and Eighth Amendment
violations on the part of OMDC officials related to their treatment of her keratoconus, a
progressive eye condition affecting the cornea. See ECF No. 1 at 2–6.1 Plaintiff moves to
1 The Court takes judicial notice of two other § 1983 civil rights actions filed by Plaintiff
earlier in 2025, both of which also remain pending. See Camargo Alejo v. Vista Detention
Facility, S.D. Cal. Case No. 3:25-cv-00258-AGS-BJW (hereafter “Camargo Alejo I”)
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proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2), and
further seeks a temporary restraining order (“TRO”) and/or preliminary injunction
requiring Defendants to refer her to an ophthalmologist for corneal cross-linking surgery
and an eventual cornea transplant. (ECF No. 3 at 1–2.)
Having carefully reviewed Plaintiff’s complaint, all attached exhibits, her IFP
motion and TRO, the Court GRANTS Plaintiff’s IFP motion, DENIES her motion for
TRO and/or preliminary Injunction, and DISMISSES the case.
I. IFP MOTION
Generally, a party who institutes a civil action, suit, or proceeding in a district court
of the United States, must pay a filing fee of $405.2 See 28 U.S.C. § 1914(a). The action
may proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted leave
to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047,
1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). If the
plaintiff seeing to proceed IFP is a “prisoner,” the Prison Litigation Reform Act (“PLRA”)
(filed Feb. 2, 2025); Camargo v. Doe, et al., E.D. Cal. Case No. 1:25-cv-00723-BAM
(hereafter “Camargo II”) (filed June 13, 2025); Bias v. Moynihan, 508 F.3d 1212, 1225
(9th Cir. 2007) (the court may take judicial notice of any “proceedings in other courts, both
within and without the federal judicial system, if those proceedings have a ‘direct relation
to matters at issue.’”) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir.
2002)). In Camargo Alejo I, Plaintiff identifies as transgender and also challenges the
adequacy of the medical treatment provided for her keratoconus, but while she was
detained at Vista Detention Facility (“VDF”) from September 2024 through January 2025.
Id., ECF No. 1 at 1; ECF No. 17 at 10; ECF No. 30 at 3–4. In Camargo II, Plaintiff claims
prison officials at Wasco State Prison also failed to provide adequate care for her
keratoconus in April and May 2025. See id., ECF No. 1 at 3. Plaintiff was released from
CDCR custody and transferred into ICE custody on September 4, 2025. See Camargo Alejo
I, ECF No. 26 (Notice of Change of Address).
2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative
fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court
Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does
not apply to persons granted leave to proceed IFP. Id.
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requires submission of a “certified copy of the trust fund account statement (or institutional
equivalent) for . . . the 6-month period immediately preceding the filing of the complaint.”
28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). Prisoners
granted IFP must also “pay the full amount of a filing fee,” but may do so in installments
as provided by 28 U.S.C. § 1915(b)(1). See Bruce v. Samuels, 577 U.S. 82, 86 (2016).
“Unlike other indigent litigants, prisoners proceeding IFP must pay the full amount
of filing fees in civil actions and appeals pursuant to the [Prison Litigation Reform Act
(“PLRA”)].” Agyeman v. Immigration & Naturalization Servs., 296 F.3d 871, 886 (9th Cir.
2002). As defined by the PLRA, a “prisoner” is “any person incarcerated or detained in
any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms and conditions of parole, probation, pretrial release,
or diversionary program.” 28 U.S.C. § 1915(h). A person detained and subject to removal
or deportation—like Plaintiff here—is not a “prisoner” under the PLRA. See Agyeman, 296
F.3d at 886; Ojo v. Immigration & Naturalization Servs., 106 F.3d 680, 682–83 (5th Cir.
1997) (holding that a detainee of the Immigration and Naturalization Service (“INS”) is
not a prisoner for the purpose of the PLRA filing fee provision); cf. Andrews v. King, 398
F.3d 1113, 1122 (9th Cir. 2005) (“civil detainee” is not a “prisoner” within the meaning of
the PLRA).
Thus, while Plaintiff’s exhibits and her prior cases show she was previously
incarcerated at VDF, Wasco, and Richard J. Donovan Correctional Facility, she is now
civilly detained at OMDC which is managed and operated by Core Civic, a private for-
profit detention facility that contracts with ICE to house immigration detainees.3
3 See e.g., Geo Grp., Inc. v. Newsom, 50 F.4th 745, 753 (9th Cir. 2022) (noting that
“[v]irtually all of ICE’s detention capacity in California is in privately owned and operated
facilities.”); see also https://www.ice.gov/detain/detention-facilities/otay-mesa-detention-
center (last visited Jan. 21, 2026); https://www.corecivic.com/facilities/otay-mesa-
detention-center (describing ICE as OMDC’s “customer base”) (last visited Jan. 21, 2026);
Urmancheev v. Immigr. & Customs Enf’t Health Servs. Corps, No. 22-CV-0762-CAB
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Accordingly, Plaintiff is not a “prisoner” under the PLRA, the filing fee requirements set
out in 28 U.S.C. § 1915(b) do not apply, and the Court need only review her affidavit of
assets, just as it would for any other non-prisoner litigant. See Agyeman, 296 F.3d at 886.
Plaintiff attests she has no assets or income except for $120 “from an organization
for the holidays” and $25 in monthly support for food from “FFI.”4 ECF No. 2 at 1. She
further reports to have incurred civil filing fees for the two lawsuits previously filed in this
Court and in the Eastern District of California. Id. at 2; see also Camargo II, ECF No. 2
(E.D. Cal. June 17, 2025) (Order Granting IFP and obligating Plaintiff to pay statutory
filing fee of $350.00 pursuant to 28 U.S.C. § 1915(b)(1), (2)). Accordingly, the Court finds
Plaintiff has established the inability to pay the fees or post the securities required to
maintain this civil action and GRANTS her motion to proceed IFP (ECF No. 2).
II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)
A. Sua Sponte Review Standard
A complaint filed by any person proceeding IFP is subject to sua sponte dismissal if
it is “frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or
(MSB), 2022 WL 17541026, at *1 (S.D. Cal. Dec. 8, 2022) (noting OMDC’s operation
“under a private contract with ICE.”). “ICE primarily houses civil immigration detainees
in one of four kinds of facilities: ‘(1) Service Processing Centers; (2) Contract Detention
Facilities; (3) Intergovernmental Service Agreement facilities; and (4) [spaces provided
by] riders on U.S. Marshals Service ... or Federal Bureau of Prisons (BOP) contracts.’ []
‘Service Processing Centers are owned by ICE and staffed by a combination of federal
employees (who mainly provide medical care) and contract employees (who provide
detention services).’ [] Contract Detention Facilities, as the name implies, are ‘owned by
private companies that contract directly with the government and are predominantly staffed
by contract employees.’” CoreCivic, Inc. v. Governor of New Jersey, 145 F.4th 315, 330
(3d Cir. 2025) (Ambro, J., dissenting).
4 Plaintiff does not explain, but the Court presumes she is referring to Freedom for
Immigrants, “an immigrant-led, abolitionist organization committed to ending immigration
incarceration.” See https://www.freedomforimmigrants.org/about-us (last visited Jan. 22,
2026).
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seek[s] monetary relief from a defendant immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding
that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners”); Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits,
but requires a district court to dismiss an in forma pauperis complaint that fails to state a
claim.”).
“The standard for determining whether Plaintiff has failed to state a claim upon
which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
1108, 1112 (9th Cir. 2012). Federal Rules of Civil Procedure 8(a) and 12(b)(6) together
require a complaint to “contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted). A complaint fails to state a claim if it lacks a “cognizable legal
theory” or “sufficient facts … to support a cognizable legal theory.” Shroyer v. New
Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001)). Detailed factual allegations are not required, but
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678. And while the court “ha[s] an obligation
where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings
liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d
338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.
1985)), it may not “supply essential elements of claims that were not initially pled.” Ivey
v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
B. Plaintiff’s Allegations
The factual allegations in Plaintiff’s complaint are disjointed and conclusory, and
she incorporates by reference nearly 100 pages of exhibits comprised of CDCR medical
records pre-dating her transfer to ICE custody and 20 separate Grievance Requests
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submitted to OMDC officials between September 22, 2025 and December 29, 2025.5 See
ECF No. 1-2, 1-3. From best the Court can discern, Plaintiff alleges to have been diagnosed
with keratoconus, a progressive eye disease affecting the cornea.6 See ECF No. 1 at 3, 5,
7; see also ECF No. 1-3 at 21–22. As a result, she suffers from blurry vision, astigmatism,
light sensitivity, inflammation, and eye pain. See ECF No. 1 at 6.
On September 22, 2025, Plaintiff submitted the first of several repeated “ICE
Detainee Requests” seeking referral to an “outside” ophthalmologist for corneal cross-
linking and an eventual corneal transplant. See ECF No. 1 at 6–7, ECF No. 1-3 at 23–30.
On October 28, 2025, she was examined by an optometrist who prescribed eyedrops,
prescription glasses, and contact lenses; but her continued requests for an ophthalmological
consult were denied via OMDC’s grievance process as unnecessary. ECF No. 1 at 6–7;
5 Courts must consider the complaint in its entirety,” including “documents incorporated
into the complaint by reference” to be part of the pleading when determining whether the
plaintiff has stated a claim upon which relief may be granted. See Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal. Dep’t of Corrs., 151
F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ. P. 10(c) (“A copy of a written
instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”).
However, “a pro se litigant cannot simply dump a stack of exhibits on the court and expect
the court to sift through them to determine if some nugget is buried somewhere in that
mountain of papers, waiting to be unearthed and refined into a cognizable claim.” Samtani
v. City of Laredo, 274 F. Supp. 3d 695, 698 (S.D. Tex. 2017). “The Court will not comb
through attached exhibits seeking to determine whether a claim possibly could have been
stated where the pleading itself does not state a claim. In short, [Plaintiff] must state a
claim, not merely attach exhibits.” Stewart v. Nevada, No. 2:09-CV-01063-PMP-GWF,
2011 WL 588485, at *2 (D. Nev. Feb. 9, 2011).
6 “Keratoconus (ker-uh-toe-KOH-nus) is an eye condition in which the clear, dome-shaped
front of the eye, called the cornea, gets thinner, steeper and bulges outward into a cone
shape. A cone-shaped cornea causes blurred vision and may cause sensitivity to light and
glare.” See https://www.mayoclinic.org/diseases/conditions/keratoconus/symptoms-
causes/syc-20351352 (last visited Jan. 23, 2026); see also Lolli v. Cnty. of Orange, 351
F.3d 410, 419 (9th Cir. 2003) (“‘Well-known medical facts are the types of matters of
which judicial notice may be taken.’” (citation omitted)).
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ECF No. 1-3 at 35, 39–40, 52, 65–66. Specifically, Plaintiff was advised on several
occasions that “after being examined by an optometrist, there was no medical indication
for referral to ophthalmology … because [she] did not require surgery or specialized
procedures.” ECF No. 1-3 at 52, 65–66.
Plaintiff now seeks $590,000 in general and punitive damages pursuant to 42 U.S.C.
§ 1983 based on claims that OMDC officials, whose individual acts or omissions she does
not explain, have violated her Fifth and Eighth Amendment right to adequate medical care.7
ECF No. 1 at 3, 6. She further seeks immediate injunctive relief requiring Defendants to
refer her to an ophthalmologist for corneal cross-linking and a corneal transplant “when
[her] eyes are ready for it.” ECF No. 3 at 1–2.
C. Discussion
1. 42 U.S.C. § 1983
As an initial matter, the Court finds it must dismiss Plaintiff’s Complaint in its
entirety to the extent she has commenced suit pursuant to 42 U.S.C. § 1983. See ECF No.
1 at 1. “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right
secured by the Constitution and laws of the United States, and (2) that the deprivation was
committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698
F.3d 1128, 1138 (9th Cir. 2012).
Plaintiff is an immigration detainee currently held at OMDC, a for-profit detention
facility privately-owned and operated by CoreCivic under federal contract with ICE. See
7 Because Plaintiff is civilly detained and no longer serving a prison sentence, it is the Fifth
Amendment Due Process Clause, and not the Eighth Amendment’s prohibition of cruel
and unusual punishment that governs the conditions of her confinement. See Kingsley v.
Hendrickson, 576 U.S. 389, 400 (2015) (finding the language of the Due Process Clause
protecting detainees and the Cruel and Unusual Punishment Clause protecting prisoners
“differs, and the nature of the claims often differs.”). “The Fifth Amendment requires the
[federal] government to provide conditions of reasonable health and safety to people in its
custody.” Roman v. Wolf, 977 F.3d 935, 943 (9th Cir. 2020); see also Giron Rodas v. Lyons,
No. 25CV1912-LL-AHG, 2025 WL 2300781, at *1 (S.D. Cal. Aug. 1, 2025).
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ECF No. 1 at 2, 11. She seeks damages and injunctive relief based on claims that OMDC
officials have failed to provide her with specialized medical care for keratoconus, but she
fails to allege any Defendant acted under color of state law. Therefore, she necessarily fails
to state a claim under § 1983. Tsao, 698 F.3d at 1138; see also Lorenzo v. Figueroa, No.
3:17-CV-01493-DMS-BGS, 2017 WL 4792384, at *2–3 (S.D. Cal. Oct. 24, 2017) (sua
sponte dismissing § 1983 suit brough by immigration detainee subject to removal and held
at OMDC, a private facility now managed by Core Civic, and formerly known as
Corrections Corporation of America without leave to amend pursuant to 28 U.S.C.
§ 1915(e)(2) as frivolous); Politis v. Dyer, S. D. Texas Civil Case No. 4:04-cv-02840-H
(Aug. 12, 2004) (Order sua sponte dismissing civil action filed by immigration detainee
for failing to state a claim cognizable under § 1983 without leave to amend pursuant to 28
U.S.C. § 1915), aff’d, 126 Fed. Appx. 648 at *1 (5th Cir. 2005); Martinez v. Geo Grp.,
Inc., No. ED CV 18-1125-SP, 2020 WL 2496063, at *17 (C.D. Cal. Jan. 7, 2020)
(concluding that “because GEO Group, Diaz, and Campos were not state actors, plaintiffs
may not bring federal civil rights claims against them under § 1983.”).
2. Bivens
Because Plaintiff is an ICE detainee and has named OMDC officials rather than state
actors as Defendants, to the extent her complaint alleges a Fifth Amendment right to
adequate medical care, the Court next considers whether her claims might nevertheless
proceed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), rather than under 42 U.S.C. § 1983. See Watanabe v. Derr, 115 F.4th
1034, 1043 (9th Cir. 2024) (noting courts are “obligated to ‘liberally construe’ documents
filed pro se.”) (citing Ross v. Williams, 950 F.3d 1160, 1173 n.19 (9th Cir. 2020) (en banc);
Erickson v. Pardus, 551 U.S. 89, 94 (1976)).
Courts recognize only a narrow category of implied causes of action that may be
brought against federal officials for alleged civil rights violations committed in their
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individual capacities.8 See DeVillier v. Texas, 144 S. Ct. 938, 943 (2024) (citing Egbert v.
Boule, 596 U.S. 482, 490–491 (2022)). “In Bivens […], the Court broke new ground by
holding that a person claiming to be the victim of an unlawful arrest and search could bring
a Fourth Amendment claim for damages against the responsible agents even though no
federal statute authorized such a claim.” Hernandez v. Mesa, 589 U.S. 93, 99 (2020)
(internal citations omitted). The Supreme Court has expanded this implied cause of action
only twice, recognizing a Bivens remedy for a Fifth Amendment gender discrimination
claim, Davis v. Passman, 442 U.S. 228, 230–31 (1979), and for an Eighth Amendment
inadequate medical care claim raised by a federal prisoner’s decedents. Carlson v. Green,
446 U.S. 14, 24–25 (1980).
Since then, the Supreme Court has “changed course,” Hernandez, 589 U.S. at 99,
and “consistently refused to extend Bivens to any new context or new category of
defendants.” Ziglar v. Abbasi, 582 U.S. 120, 132 (2017) (quoting Correctional Services
Corp. v. Malesko, 534 U.S. 61, 68 (2001)). Ziglar “clarified [a] two-step framework that
courts must use to decide whether to recognize an implied cause of action against federal
agents for constitutional violations.” Schwartz v. Miller, 153 F.4th 918, 926 (9th Cir. 2025)
(citing Ziglar, 582 U.S. at 135–37). The first step requires courts to ask whether the case
arises in a new context, i.e., “is different in a meaningful way from previous Bivens cases
decided by [the Supreme] Court.” Id. (citing Ziglar, 582 U.S. at 139.) “If the case does
differ, then courts must consider whether ‘there are special factors counselling hesitation
in the absence of affirmative action by Congress.’” Id. (quoting Ziglar, 582 U.S. at 136).
“This second step focuses on ‘whether the Judiciary is well suited, absent congressional
action or instruction, to consider and weigh the costs and benefits of allowing a damages
8 To the extent a Bivens action could be brought, the Court notes Plaintiff seeks to sue the
OMDC Defendants in both their official and individual capacities. See ECF No. 1 at 2–3.
“A Bivens action can be maintained against a defendant in his or her individual capacity
only, and not in his or her official capacity.” Consejo de Desarrollo Economico de
Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007) (cleaned up).
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action to proceed.’” Id.
“‘[E]ven one’ step-two special factor is sufficient to foreclose courts from extending
a Bivens remedy in a new context.” Id. (quoting Egbert, 596 U.S. at 496). “Indeed, the
second step will resolve against a new Bivens remedy ‘in all but the most unusual
circumstances,’ because ‘in most every case,’ Congress is better positioned to provide a
damages remedy.” Id. (quoting Egbert, 596 U.S. at 486, 492). In short, “[r]ather than
dispens[ing] with Bivens [altogether], the [Supreme] Court now emphasizes that
recognizing a Bivens cause of action is ‘a disfavored judicial activity.’” Egbert, 596 U.S.
at 483 (quoting Ziglar, 582 U.S. at 121). But “[i]n the limited settings where Bivens does
apply, the implied cause of action is the ‘federal analog to suits brought against state
officials under ... 42 U.S.C. § 1983.” Iqbal, 556 U.S. at 675–76 (quoting Hartman v. Moore,
547 U.S. 250, 254 n.2 (2006)).
Here, even if Plaintiff’s complaint is liberally construed as arising under Bivens, the
Court concludes it requires dismissal. This is because Plaintiff’s claims differ from Carlson
and would extend Bivens to a new context, as she seeks to bring Fifth Amendment
inadequate medical care claims against officials at OMDC, which is managed and operated
by CoreCivic, a private for-profit corporation that contracts with ICE to house federal
immigration detainees.9 Plaintiff does not allege any Defendant is employed by the United
States or any federal agency, and Bivens has never been applied to an individual who was
not “in the direct employ of the federal government.” Martinez v. Geo Grp., Inc., No. ED
CV 18-1125-SP, 2020 WL 2496063, at *18 (C.D. Cal. Jan. 7, 2020); see also Sanchez-
Rivera v. Bribiesca, No. 20CV1264-MMA-MSB, 2020 WL 4500626, at *5 (S.D. Cal. Aug.
9 Formerly known as Corrections Corporation of America (“CCA”), CoreCivic was
“rebranded” as its “corporate enterprise” in October 2016. See https://www.corecivic.
com/news/corrections-corporation-of-america-rebrands-as-corecivic (last visited Jan. 26,
2026). CoreCivic operates as “the nation’s largest owner of partnership correctional,
detention and residential reentry facilities, and one of the largest prison operators in the
United States.” See https://www.corecivic.com/about (last visited Jan. 26, 2026).
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5, 2020) (Bivens does not authorize a damages suit against a private entity or its
employees); Dubon v. GEO Corr. & Det., No. 3:18CV686-CAB-RBB, 2018 WL 4002620,
at *3 (S.D. Cal. Aug. 22, 2018) (explaining that the Supreme Court has refused to extend
liability for constitutional violations to private actors who contract with the federal
government (citing Malesko, 534 U.S. at 69)).
In Minneci v. Pollard, 565 U.S. 118, 120 (2012), the Supreme Court declined to
recognize a Bivens claim involving the denial of medical care against employees of a
privately operated federal prison, concluding that if :
a federal prisoner seeks damages from privately employed personnel working
at a privately operated federal prison, where the conduct allegedly amounts to
a violation of the Eighth Amendment, and where that conduct is of a kind that
typically falls within the scope of traditional state tort law ...., the prisoner
must seek a remedy under state tort law.
Id. at 131. The Supreme Court in Pollard specifically refused to apply Carlson because
that case was filed by a federal prisoner seeking damages from government personnel, not
personnel employed by a private firm, and prisoners ordinarily can bring state law tort
actions against employees of a private firm. Id. at 126.
Thus, because Plaintiff, like Pollard, seeks to sue employees of a private entity
located in California for purportedly failing to provide her adequate medical care, and
California tort law “provides for ordinary negligence actions, for actions based on ‘want of
ordinary care or skill,’ for actions for ‘negligent failure to diagnose or treat,’ and for actions
based on the failure of one with a custodial duty to care for another [and] to protect that
other from ‘unreasonable risk of physical harm,’” id. at 128, no Bivens remedy may be
implied. Id. at 131; see also McGurk v. Jusino, No. 5:22-CV-00529-SB-JDE, 2022 WL
17080128, at *9 (C.D. Cal. Aug. 22, 2022) (finding extension of Bivens to a private
employee of a medical diagnostics company foreclosed by Pollard);
Nagel v. Core Civic, No. 2:20-CV-01279-JAD-VCF, 2021 WL 4954304, at *3 (D. Nev.
Oct. 25, 2021) (dismissing federal prisoner could not pursue Eighth Amendment claims for
deliberate indifference to serious medical needs against CoreCivic employees under Bivens
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because they “d[id] not fall into one of the three categories for which Bivens claims are
authorized, … and because they target[ed] employees of a privately operated prison.”).
Thus, because Plaintiff’s complaint fails to state a claim upon which relief can be
granted, no additional facts could possibly cure these pleading deficiencies, and her suit
lacks an “arguable basis” in law, see Neitzke v. Williams, 490 U.S. 319, 325 (1989), the
Court DISMISSES her complaint sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and
(iii) and DENIES leave to amend as futile.10 See Cervantes v. Countrywide Home Loans,
Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (upholding dismissal for failure to state a claim
where “the complaint d[id] not make out a cognizable legal theory [n]or . . . allege sufficient
facts to support a cognizable legal theory.”).
III. MOTION FOR TRO / PRELIMINARY INJUNCTION
Plaintiff has also filed a motion for TRO and preliminary injunctive relief requiring
the OMDC Defendants to refer her to an ophthalmologist for “corneal cross-linking” and
a cornea transplant when her eyes are “ready for it.” ECF No. 3 at 2.
Procedurally, a federal district court may issue emergency injunctive relief only if it
has personal jurisdiction over the parties and subject matter jurisdiction over the lawsuit.
See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999) (noting
that one “becomes a party officially, and is required to take action in that capacity, only
upon service of summons or other authority-asserting measure stating the time within
which the party served must appear to defend.”). A court may not attempt to determine the
rights of persons not before it. See, e.g., Hitchman Coal & Coke Co. v. Mitchell, 245 U.S.
229, 234-35 (1916); Zepeda v. INS, 753 F.2d 719, 727–28 (9th Cir. 1983). Pursuant to
Federal Rule of Civil Procedure 65(d)(2), an injunction binds only “the parties to the
10 The Court expressly intends the dismissal of this action to operate without prejudice to
Plaintiff’s pursuit of her pending § 1983 claims in Camargo Alejo I, S.D. Cal. Case No.
3:25-cv-0258-AGS-BJW and Camargo II, E.D. Cal. Case No. 1:25-cv-00723-BAM, as
both those cases remain pending and involve Eighth Amendment inadequate medical care
claims arising while Plaintiff was in state and local custody.
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action,” their “officers, agents, servants, employees, and attorneys,” and “other persons
who are in active concert or participation.” Fed. R. Civ. P. 65(d)(2)(A)-(C).
Substantively, Federal Rule of Civil Procedure 65 authorizes a trial judge to grant a
temporary restraining order under certain circumstances “to preserve the status quo and the
rights of the parties until a final judgment issues in the cause.” See Ramos v. Wolf, 975 F.3d
872, 887 (9th Cir. 2020) (quoting U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091,
1094 (9th Cir. 2010)). “The standard for issuing a temporary restraining order is identical
to the standard for issuing a preliminary injunction.” Lockheed Missile & Space Co. v.
Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). “A party seeking a
preliminary injunction must meet one of two variants of the same standard.” Ramos, 975
F.3d at 887 (quoting All. for Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017)).
Under the original standard, plaintiffs seeking a preliminary injunction must
establish that: (1) they are likely to succeed on the merits; (2) they are likely
to suffer irreparable harm in the absence of preliminary relief; (3) the balance
of equities tips in their favor; and (4) an injunction is in the public interest.
Id. (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “The Ninth Circuit
employs an alternative ‘serious questions’ standard, also known as the ‘sliding scale’
variant of the Winter standard.” Id. (citing All. for Wild Rockies v. Cottrell, 632 F.3d 1127,
1134 (9th Cir. 2011)).
Under this alternate standard, [the court] weigh[s] the preliminary injunction
factors on a sliding scale, such that where there are only serious questions
going to the merits—that is, less than a likelihood of success on the merits a
preliminary injunction may still issue so long as the balance of hardships tips
sharply in the plaintiff’s favor and the other two factors are satisfied.
Id. at 887–88 (internal quotation marks omitted) (quoting Short v. Brown, 893 F.3d 671,
675 (9th Cir. 2018)). In other words, “[a] preliminary injunction may be granted . . . where
the moving party demonstrates either ‘(1) a combination of probable success on the merits
and the possibility of irreparable injury or (2) the existence of serious questions going to
the merits and that the balance of hardships tips sharply in [its] favor.’” Grocery Outlet
Inc. v. Albertson’s Inc., 497 F.3d 949, 951 (9th Cir. 2007) (emphasis and second alteration
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in original) (quoting Sardi’s Rest. Corp. v. Sardie, 755 F.2d 719, 723 (9th Cir. 1985)).
First, Plaintiff’s complaint has not survived the initial sua sponte screening required
by 28 U.S.C. § 1915(e)(2), the United States Marshal has not been directed to effect service
on her behalf, and the named Defendants have no actual notice of either her complaint or
her TRO. Therefore, the Court cannot grant Plaintiff injunctive relief because it has no
personal jurisdiction over any Defendant at this time. See Fed. R. Civ. P. 65(a)(1), (d)(2);
Murphy Bros., Inc., 526 U.S. at 350; Zepeda, 753 F.2d at 727‒28. A district court has no
authority to grant relief in the form of a temporary restraining order or permanent
injunction where it has no jurisdiction over the parties. Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 584 (1999) (“Personal jurisdiction, too, is an essential element of the
jurisdiction of a district ... court, without which the court is powerless to proceed to an
adjudication.”) (citation and internal quotation omitted).
Moreover, the “[l]ikelihood of success on the merits ‘is the most important’ Winter
factor[.]” Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (quoting
Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015)). In conducting its initial
screening of her complaint, the Court has found Plaintiff fails to state any claim upon which
§ 1983 relief can be granted and has dismissed her claims without leave to amend pursuant
to 28 U.S.C. § 1915(e)(2). Consequently, she has necessarily failed to show, for purposes
of justifying preliminary injunctive relief, any likelihood of success on the merits. See
Pimental v. Dreyfus, 670 F.3d 1096, 1111 (9th Cir. 2012) (“[A]t an irreducible minimum
the moving party must demonstrate a fair chance of success on the merits….”) (internal
quotation marks and citation omitted); see also Williams v. Duffy, et al., Civil Case No. 18-
cv-06921-BLF, 2019 WL 95924, at *3 (N.D. Cal. Jan. 3, 2019) (“[Having reached th[e]
conclusion [that Plaintiff’s complaint failed to state a claim], the Court need not reach the
remainder of the Winter factors.”); Asberry v. Beard, Civil Case No. 3:13-cv-2573-WQH
JLB, 2014 WL 3943459, at *9 (S.D. Cal. Aug. 12, 2014) (denying prisoner’s motion for
preliminary injunction because his complaint was subject to dismissal pursuant to 28
U.S.C. § 1915(e)(2) and § 1915A, and therefore had not shown he was “likely to succeed
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on the merits” of any claim, that “the balance of equities tip[ped] in his favor,” or the
issuance of an injunction would serve the public interest (citing Winter, 555 U.S. at 20)).
Finally, in order to meet Fed. R. Civ. P. 65’s “irreparable injury” requirement,
Plaintiff must do more than simply allege imminent harm; she must demonstrate it.
Caribbean Marine Servs. Co., Inc. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). This
demands she allege “specific facts in an affidavit or a verified complaint [which] clearly
show” a credible threat of “immediate and irreparable injury, loss or damage.” Fed. R. Civ.
P. 65(b)(A). But nothing in Plaintiff’s unsworn complaint or TRO motion establishes that
she faces an immediate or credible threat of irreparable injury. Instead, the exhibits she
relies on show only that she suffers from “mild keratoconus,” see ECF No. 1-2 at 14, an
eye disease for which she has been treated by an optometrist and prescribed both
medication and scleral contact lenses. See ECF No. 1-3, at 1–6, 72. Her complaint and
attached exhibits further show that while Plaintiff fears blindness if her condition
progresses, see ECF No. 1 at 7, ECF No. 3 at 2, an October 28, 2025 optometric assessment
of her current prognosis does not include any medical recommendation for immediate
ophthalmological referral, advanced care, surgery, or any other “specialized procedures.”
See ECF No. 1-3 at 66.11 “Speculative injury does not constitute irreparable injury
11 Indeed, even if Plaintiff could bring a federal case against the OMDC Defendants based
on their alleged failure to provide adequate medical care for her keratoconus while she has
been held in immigration custody, see e.g., Doe v. Kelly, 878 F.3d 710, 722 (9tth Cir. 2017)
(noting “[t]here is no question that [immigration] detainees are entitled to adequate medical
care”), her allegations do not rise to the level of any constitutional violation. For it is well-
settled that a mere difference of opinion between a prisoner-patient and medical authorities
regarding the course of proper treatment does not amount to “deliberate indifference” under
either the Eighth Amendment’s cruel and unusual punishments clause or the Fifth
Amendment’s due process clause. See Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir.
2019) (a difference of opinion between the physician and the prisoner concerning the
appropriate course of treatment does not amount to deliberate indifference to serious
medical needs); Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (a showing of
nothing more than a difference of medical opinion as to the need to pursue one course of
treatment over another is insufficient, as a matter of law, to establish deliberate
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sufficient to warrant granting a preliminary injunction.” Caribbean Marine, 844 F.3d at
674‒75; Conn. v. Mass., 282 U.S. 660, 674 (1931) (an injunction is only appropriate “to
prevent existing or presently threatened injuries”); Sellers v. Gootkin, No. CV 24-20-H-
DWM, 2025 WL 3209324, at *2 (D. Mont. Oct. 2, 2025) (denying injunctive relief to
prisoner requesting eye surgery where records showed he had been provided “recent and
ongoing medical care” and there was no evidence he would suffer irreparable harm without
further eye surgery); Chappell v. Stankorb, No. 1:11-CV-01425-LJO, 2012 WL 1413889,
at *2 (E.D. Cal. Apr. 23, 2012) (denying injunctive relief where prisoner’s claims of injury
based on current or future housing decisions were nothing “more than speculative.”), report
and recommendation adopted, 2012 WL 2839816 (E.D. Cal. July 9, 2012). A presently
existing actual threat must be shown, even though injury need not be certain to occur. See
Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130–31 (1969); FDIC v.
Garner, 125 F.3d 1272, 1279–80 (9th Cir. 1997); Caribbean Marine, 844 F.2d at 674.
Therefore, because Plaintiff has failed to serve the required notice upon the adverse
parties, has shown no likelihood of success on the merits, and has offered only unsworn
allegations of potential future harm, the Court DENIES her motion for TRO and/or
preliminary injunctive relief (ECF No. 3). See Dymo Indus. v. Tapeprinter, Inc., 326 F.2d
141, 143 (9th Cir. 1964) (“The grant of a preliminary injunction is the exercise of a very
far reaching power never to be indulged in except in a case clearly warranting it.”); Goggin
v. Williams, No. 3:25-CV-01873-RBM-DEB, 2025 WL 3034073, at *4 (S.D. Cal. Oct. 30,
2025) (denying pro se plaintiff’s TRO as moot where his complaint failed to state a claim
indifference); Fraihat v. U.S. Immigr. & Customs Enf’t, 16 F.4th 613, 637 (9th Cir. 2021)
(applying objective “deliberate indifference” standards to ICE detainee’s Fifth Amendment
inadequate medical needs claims); Roman, 977 F.3d at 943 (recognizing that a “mere lack
of due care” is not enough; and concluding that an immigration detainee must instead show
“something akin to reckless disregard”) (citing Gordon v. County of Orange, 888 F.3d
1118, 1125 (9th Cir. 2018); Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th
Cir. 2016) (en banc)).
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and required sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)).
IV. CONCLUSION
Accordingly, for all the reasons explained the Court:
(1) GRANTS Plaintiff’s motion to proceed IFP (ECF No. 2) pursuant to See S.D.
Cal. CivLR 3.2(a);
(2) DISMISSES Plaintiff’s complaint sua sponte in its entirety and without leave
to amend for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii);
(3) DENIES Plaintiff’s motion for TRO and preliminary injunction (ECF No. 3);
(4) CERTIFIES that an IFP appeal would not be taken in good faith pursuant to
28 U.S.C. § 1915(a)(3), and
(5) DIRECTS the Clerk of the Court to enter a judgment of dismissal and to close
the file.
IT IS SO ORDERED.
Dated: January 28, 2026
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