Arline v. Perez et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
KEITH DUANE ARLINE, JR.,
CDCR #T-13192,
Plaintiff,
vs.
H. PEREZ, Appeals Coordinator,
T. SORIANO, Facility Captain,
A. GREEN, Warden and
F. GUZMAN, Former Warden,
Defendants.
Case No.: 26cv4753-LL-SBC
ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
AND DISMISSING COMPLAINT
PURSUANT TO 28 U.S.C.
§§ 1915(e)(2) & 1915A(b)
Plaintiff Keith Duane Arline, Jr. is a state inmate proceeding pro se with a civil rights
Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff has also filed a motion to
proceed in forma pauperis (“IFP”). (ECF No. 2.)
I. 	Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the
United States, except an application for writ of habeas corpus, must pay a filing fee of
$405, consisting of a $350 statutory fee plus an additional administrative fee of $55,
although the administrative fee does not apply to persons granted leave to proceed IFP.
See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee
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Schedule, § 14 (eff. Dec. 1, 2023)). 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). 	Section
1915(a)(2) requires prisoners seeking leave to proceed IFP to submit 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). From the certified trust account statement, the
Court assesses an initial payment of 20% of (a) the average monthly deposits in the account
for the past six months, or (b) the average monthly balance in the account for the past six
months, whichever is greater, unless the prisoner has insufficient assets. 	See 28 U.S.C.
§ 1915(b)(1)&(4); Bruce v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP
must pay any remaining balance in “increments” or “installments,” regardless of whether
their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1)&(2); Bruce, 577 U.S. at 84.
In support of his IFP motion, Plaintiff has submitted a copy of his California
Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report and
Prison Certificate attested to by a CDCR trust account official. 	(ECF No. 3 at 4.) 	The
document shows he had an average monthly balance of $147.37 and average monthly
deposits of $148.22, with an available balance of $27.67. 	Id. 	The Court GRANTS
Plaintiff’s motion to proceed IFP and assesses a $29.64 initial filing fee. 	However, this
initial fee need be collected only if sufficient funds are available in Plaintiff’s account at
the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event
shall a prisoner be prohibited from bringing a civil action or appealing a civil action or
criminal judgment for the reason that the prisoner has no assets and no means by which to
pay the initial partial filing fee.”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002)
(finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a
prisoner’s IFP case based solely on “failure to pay . . . due to the lack of funds available to
him when payment is ordered.”) Plaintiff remains obligated to pay the entire $350 statutory
fee in full pursuant to the installment provisions of 28 U.S.C. § 1915(b)(1)&(2).
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II. 	Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
A. 	Standard of Review
Because Plaintiff is a prisoner proceeding IFP, his Complaint requires a pre-Answer
screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). 	The Court must sua sponte
dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails
to state a claim, or seeks damages from defendants who are immune. Lopez v. Smith, 203
F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes
v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
“The standard for determining whether a 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); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
2012) (noting that § 1915A screening “incorporates the familiar standard applied in the
context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule
12(b)(6) requires 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),
quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Determining whether
a complaint states a plausible claim for relief [is] . . . a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” 	Id. 	“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).
B. 	Allegations in the Complaint
Plaintiff alleges that on August 6, 2025, while housed at Centinela State Prison, he
filed a grievance complaining that after he observed a rodent/rat/field mouse jump from
the inmates’ cold sack lunches and be caught by an inmate kitchen worker in a wastebasket,
the sack lunches were distributed to the inmates. (ECF No. 1 at 3, 5.) The grievance also
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included a complaint that his housing unit has numerous wild birds living there which leave
feces on surfaces touched and sat upon by inmates. (Id.) Defendant Perez, the Centinela
Appeals Coordinator, “in retaliation disregarded facts and recorded proof, denied the prison
grievance, exhibiting the approval of the 8th Amendment violation; risk to Plaintiff’s
health.” (Id. at 2, 3.) Plaintiff alleges Perez chilled and silenced him from seeking redress
in violation of the First Amendment by recklessly disregarding evidence supporting his
grievance. 	(Id. at 3-4.) 	He alleges that Perez and Defendants Facility Captain Soriano,
Warden Green and former Warden Guzman “failed to take reasonable steps to abate the
problem” in violation of the Eighth Amendment by being deliberately indifferent to the
risk to his health from unsanitary conditions of confinement by failing to prevent the spread
of communicable infections and diseases without a legitimate penological justification.
(Id. at 3-7.) He alleges Soriano, Green and Guzman personally participated in the violation
because they had the opportunity to intervene and failed to do so. (Id. at 5-7.)
C. 	Discussion
1. Eighth Amendment claim
The Eighth Amendment’s prohibition against cruel and unusual punishment protects
prisoners from inhumane conditions of confinement. 	Farmer v. Brennan, 511 U.S. 825,
832 (1994) (“The Constitution ‘does not mandate comfortable prisons,’ but neither does it
permit inhumane ones.”), quoting 	Rhodes v. Chapman, 452 U.S. 337, 347 (1981)
(“Conditions must not involve the wanton and unnecessary infliction of pain.”) A prisoner
claiming an Eighth Amendment violation must allege: (1) the deprivation they suffered
was “objectively, sufficiently serious;” and (2) a prison official acted with deliberate
indifference to a serious risk to their health or safety in allowing that deprivation to take
place. Farmer, 511 U.S. at 834.
“Prison officials have a duty to ensure that prisoners are provided adequate shelter,
food, clothing, sanitation, medical care and personal safety.” 	Johnson v. Lewis, 217 F.3d
726, 731 (9th Cir. 2000). “Although the routine discomfort inherent in the prison setting
is inadequate to satisfy the objective prong of an Eighth Amendment inquiry, those
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deprivations denying the minimal civilized measure of life’s necessities are sufficiently
grave to form the basis of an Eighth Amendment violation.” 	Id. (internal quote marks
omitted). “[W]hile conditions of confinement may be, and often are, restrictive and harsh,
they must not involve the wanton and unnecessary infliction of pain. In other words, they
must not be devoid of legitimate penological purpose or contrary to evolving standards of
decency that mark the progress of a maturing society.” 	Morgan v. Morgensen, 465 F.3d
1041, 1045 (9th Cir. 2006) (internal quote marks and citations omitted).
Plaintiff’s allegations that he observed a rodent on one occasion and that birds have
deposited feces on surfaces in his housing unit fail to plausibly allege that the duration or
severity of the lack of sanitation rose to the level of an Eighth Amendment violation. See
Johnson, 217 F.3d at 731 (“The circumstances, nature, and duration of a deprivation of
[adequate sanitation] must be considered in determining whether a constitutional violation
has occurred.”) Although “subjection of a prisoner to lack of sanitation that is severe or
prolonged 	can 	constitute 	an 	infliction 	of 	pain 	within 	the 	meaning 	of 	the 	Eighth
Amendment,” the temporary imposition of such conditions does not state a claim absent
allegations of a risk of harm. Anderson v. County of Kern, 45 F.3d 1310, 1314-15 (9th Cir.
1995); Iqbal, 556 U.S. at 678 (noting that a complaint is subject to dismissal for failure to
state a claim if it does not “contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face,” and conclusory allegations with the “mere
possibility of misconduct” fall short of meeting this plausibility standard.)
Plaintiff alleges that Defendants Facility Captain Soriano should have known the
birds and rodent posed a health risk, that Wardens Green and Guzman recklessly
disregarded that health risk, and that they all were personally involved in the risk to his
health because they “failed to take reasonable steps to abate the problem,” and “had an
alternative means to make corrections, but failed to utilize them such as ordering or set in
motion the removal of the” wildlife. 	(ECF No. 1 at 5-7; ECF No. 1-2 at 3.) 	Plaintiff is
required to allege facts which plausibly show each individual Defendant was personally
involved in the alleged constitutional violation. Jones v. Williams, 297 F.3d 930, 934 (9th
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Cir. 2002) (“In order for a person acting under color of state law to be liable under section
1983 there must be a showing of personal participation in the alleged rights deprivation:
there is no respondeat superior liability under section 1983.”) 	A prisoner must allege
“(1) that the specific prison official, in acting or failing to act, was deliberately indifferent
to the mandates of the eighth amendment and (2) that this indifference was the actual and
proximate cause of the deprivation of the inmates’ eighth amendment right to be free from
cruel and unusual punishment.” 	Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).
Supervisors may only be held liable if they were “personally involved in the constitutional
violation or a sufficient causal connection exists between the supervisor’s unlawful conduct
and the constitutional violation.” 	Lemire v. Cal. Dept. of Corrections & Rehabilitation,
726 F.3d 1062, 1074-75 (9th Cir. 2013).
Plaintiff has not plausibly alleged facts showing that Defendants Facility Captain
Soriano, Warden Green and former Warden Guzman were aware that a rodent was
observed on one occasion or that birds drop feces in the housing unit, does not identify
what reasonable steps or alternate means to abate the problem Plaintiff contends they were
responsible for taking or adopting, and does not allege fact showing they were aware the
infestation created a substantial risk to Plaintiff’s health and deliberately disregarded that
risk. 	As noted above, there are insufficient factual allegations in the Complaint that the
presence of a single rodent and birds living in the housing unit plausibly allege a substantial
risk to Plaintiff’s health. 	See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)
(“A plaintiff must allege facts, not simply conclusions, that show that an individual was
personally involved in the deprivation of his civil rights.”)
Plaintiff’s Eighth Amendment claim is dismissed sua sponte pursuant to 28 U.S.C.
§§ 1915(e)(2) & 1915A(b) for failing to state a claim. Watison, 668 F.3d at 1112; Wilhelm,
680 F.3d at 1121.
2. 	First Amendment Retaliation Claim
Plaintiff alleges he was retaliated against for filing his grievance because the
arbitrary denial of the grievance by Appeals Coordinator Perez, who allegedly ignored
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indisputable video evidence, had a chilling effect and silenced him from seeking redress.
(ECF No. 1 at 4.) “Prisoners have a First Amendment right to file grievances against prison
officials,” Watison, 668 F.3d at 1114, and retaliation against a prisoner for filing grievances
is an independent constitutional violation. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.
2009). “Within the prison context, a viable claim of First Amendment retaliation entails
five basic elements: (1) An assertion that a state actor took some adverse action against an
inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled
the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably
advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (2005)
(footnote omitted). Plaintiff must allege a retaliatory motive, that is, a causal connection
between the adverse action and his protected conduct. Watison, 668 F.3d at 1114.
Plaintiff has not identified any adverse action taken against him because of the filing
of the grievance, merely that his grievance was arbitrarily denied. 	See Rhodes, 408 F.3d
at 567 (stating a plaintiff must allege adverse action was taken “because of” his protected
conduct). Nor has he alleged any facts which plausibly show the denial of the grievance
by Defendant Perez was in retaliation for filing the grievance. 	See Pratt v. Rowland, 65
F.3d 802, 808 (9th Cir. 1995) (concluding that, in the absence of factual allegations to the
contrary, it would be “sheer speculation” to assume that prison officials retaliated on the
basis of an inmate’s First Amendment activity); Iqbal, 556 U.S. at 678 (holding that the
“mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me
accusation[s]” fall short of meeting the plausibility standard for pleading a § 1983 claim);
Hentz v. Ceniga, 402 Fed.Appx. 214, 215 (9th Cir. 2010) (conclusory allegations of
retaliation do not state a claim). 	Plaintiff has not plausibly alleged that his protected
conduct was a “substantial” or “motivating” factor in the decision to deny his grievance.
Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989).
Plaintiff’s First Amendment retaliation claim is dismissed pursuant to 28 U.S.C.
§§ 1915(e)(2) & 1915A(b) for failure to state a claim. Watison, 668 F.3d at 1112; Wilhelm,
680 F.3d at 1121. To the extent Plaintiff intended to present a claim arising solely from
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the allegations that his grievance was wrongly denied despite it being supported with
indisputable evidence, he has failed to state a claim. “The Supreme Court has . . . held that
to obtain a protectable right an individual must have a legitimate claim of entitlement to it,
[but] there is no legitimate claim of entitlement to a grievance procedure.” Mann v. Adams,
855 F.2d 639, 640 (9th Cir. 1988) (citations and quote marks omitted); see also Ramirez v.
Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (“[I]nmates lack a separate constitutional
entitlement to a specific prison grievance procedure.”)
D. 	Leave to Amend
In light of his pro se status, the Court grants Plaintiff leave to amend his Complaint
in order to attempt to address the pleading deficiencies identified in this Order. See Rosati
v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro
se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it
is 	absolutely 	clear 	that 	the 	deficiencies 	of 	the 	complaint 	could 	not 	be 	cured 	by
amendment.’”), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).
III. 	Conclusion and Orders
Accordingly, good cause appearing, the Court:
1) 	GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2).
2) 	DIRECTS the Secretary of the CDCR, or his designee, to collect from
Plaintiff’s prison trust account the $29.64 initial filing fee and collecting the remaining
balance of the $350 filing fee owed in this case by garnishing monthly payments from his
account in an amount equal to twenty percent (20%) of the preceding month’s income and
forwarding those payments to the Clerk of the Court each time the amount in the account
exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). The initial fee need be collected only if
sufficient funds are available in Plaintiff’s account at the time this Order is executed.
3) 	DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail
on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation,
P.O. Box 942883, Sacramento, California, 94283-0001.
/ / /
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4) 	DISMISSES Plaintiff’s Complaint for failing to state a claim upon which
relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1) and
GRANTS Plaintiff forty-five (45) days leave from the date of this Order in which to file
an Amended Complaint which cures all the deficiencies of pleading noted. Plaintiff’s
Amended Complaint must be complete by itself without reference to his original pleading.
Defendants not named and any claim not re-alleged in his Amended Complaint will be
considered waived. See S.D. CAL. CIVLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
and Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes
the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that
claims dismissed with leave to amend which are not re-alleged in an amended pleading
may be “considered waived if not repled.”)
If Plaintiff fails to file an Amended Complaint within the time provided, the Court
will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state
a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) &
1915A(b)(1), and his failure to prosecute in compliance with a court order requiring
amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does
not take advantage of the opportunity to fix his complaint, a district court may convert the
dismissal of the complaint into dismissal of the entire action.”)
IT IS SO ORDERED.
Dated: October 13, 2026
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