Marin v. Catano, 21-CV-1445 JLS (LL)

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Decision Date23 August 2021
Docket Number21-CV-1445 JLS (LL)
PartiesMEL MARIN, Plaintiff, v. KRISTINE CATANO; ADELA DE LA TORRE; VANESSA RUIZ; and JOSEPH I. CASTRO, in their official and personal capacities; and SAN DIEGO STATE UNIVERSITY, Defendants.

MEL MARIN, Plaintiff,

KRISTINE CATANO; ADELA DE LA TORRE; VANESSA RUIZ; and JOSEPH I. CASTRO, in their official and personal capacities; and SAN DIEGO STATE UNIVERSITY, Defendants.

No. 21-CV-1445 JLS (LL)

United States District Court, S.D. California

August 23, 2021



Presently before the Court are Plaintiff Mel Marin's Complaint (“Compl., ” ECF No. 1); Motion to Proceed in Forma Pauperis (“IFP Mot., ” ECF No. 2); and Motion for Temporary Restraining Order and Preliminary Injunction (“TRO Mot., ” ECF No. 3). Having carefully considered these filings and the applicable law, the Court GRANTS Plaintiff's IFP Motion, DISMISSES Plaintiff's Complaint WITH LEAVE TO AMEND, and DENIES WITHOUT PREJUDICE Plaintiff's TRO Motion.


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 $402.[1] See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if he is granted leave to proceed in forma pauperis (“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). Although the statute does not specify the qualifications for proceeding IFP, the plaintiff's affidavit must allege poverty with some particularity. Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015). Granting a plaintiff leave to proceed IFP may be proper, for example, when the affidavit demonstrates that paying court costs will result in a plaintiff's inability to afford the “necessities of life.” Id. The affidavit, however, need not demonstrate that the plaintiff is destitute. Id.

Here, Plaintiff's IFP Motion establishes that he has an income of “about $750 a month in the nature of a pension based on prior military duty.” IFP Mot. at 4; see also Application to Proceed in District Court Without Prepaying Fees or Costs (“Affidavit, ” ECF No. 2) at 1-2. Plaintiff reports having $165.00 in cash and owning a motor vehicle worth approximately $600. See Affidavit at 2-3. Plaintiff further indicates that he has two checking accounts and a savings account, although he does not provide balance information for those accounts. See Id. at 2. Plaintiff's monthly expenses of $895.00 exceed his monthly income. See Id. at 4-5. The Court therefore concludes that Plaintiff adequately has demonstrated that paying the $402 filing fee would result in his inability to afford the necessities of life. Accordingly, the Court GRANTS Plaintiff's IFP Motion.

SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)

I. Standard of Review

Because Plaintiff is proceeding IFP, his Complaint requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2). See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2002) (per curiam) (holding 28 U.S.C. § 1915(e)(2) screening applies to non-prisoners proceeding IFP); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)). Under this statute, the Court sua sponte must dismiss a complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez, 203 F.3d at 1126-27. “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations omitted).

“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). Rule 12(b)(6) requires a complaint “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); Wilhelm, 680 F.3d at 1121. 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. “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. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

Further, “[w]hile factual allegations are accepted as true, legal conclusions are not.” Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June 28, 2012) (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth in a complaint if the plaintiff has not supported his contentions with facts. Id. (citing Iqbal, 556 U.S. at 679).

“Generally, district courts may not consider material outside the pleadings when assessing the sufficiency of a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)). “There are two exceptions to this rule: the incorporation-by-reference doctrine, and judicial notice under Federal Rule of Evidence 201.” Id.

Pursuant to Federal Rule of Evidence 201(b), “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” “Accordingly, ‘[a] court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment.'” Khoja, 899 F.3d at 999 (quoting Lee, 250 F.3d at 689). “But a court cannot take judicial notice of disputed facts contained in such public records.” Id. (citing Lee, 250 F.3d at 689).

“Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (citing Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431(7th Cir. 1993)). “‘[T]he mere mention of the existence of a document is insufficient to incorporate the contents of a document' under Ritchie.” Khoja, 899 F.3d at 1002 (quoting Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010)). Nonetheless, a document may still form the basis of the plaintiff's claim where “the claim necessarily depend[s] on the[ document].” Id. (citing Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)). “However, if the document merely creates a defense to the well-pled allegations in the complaint, then that document did not necessarily form the basis of the complaint.” Id. When a document is incorporated by reference, “the district court may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” Ritchie, 342 F.3d at 908; see also Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (“The court may treat . . . a document [incorporated by reference] as ‘part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).'”) (citing Ritchie, 342 F.3d at 908). Nonetheless, “it is improper to assume the truth of an incorporated document if such assumptions only serve to dispute facts stated in a well-pleaded complaint.” Khoja, 899 F.3d at 1003.

Courts have a duty to construe a pro se litigant's pleadings liberally. See Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The district court should grant leave to amend if it appears “at all possible that the plaintiff can correct the defect, ” unless the court determines that “the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1990)).

II. Plaintiff's Factual Allegations

Plaintiff alleges that he is a student at San Diego State University (“SDSU”). Compl. ¶ 1. Plaintiff claims that, “[o]n July 27, 2021 defendants created a rule that bars students from in-person instruction hereafter if the student cannot show proof of COVID vaccination even if the unvaccinated student wears a mask. Exhibit A is unassailable proof of it.” Id. ¶ 3. He claims that this rule “bars students with medical conditions that caution against a vaccine, in violation of Section 504 of the Rehabilitation Act of 1973.” Id. ¶ 5. Plaintiff is a disabled veteran with medical issues who is therefore barred from attending classes. Id. ¶ 6. Plaintiff further claims that the decision whether to get the vaccine is protected First Amendment expression, id. ¶ 7, and that the policy is counter to AB-86, which “bars any California school from denying in-person...

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