(PC) Sekona v. Trujillo ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ETUATE SEKONA, Case No. 1:19-cv-0399-AWI-BAM (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF 12 v. ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM FOR RELIEF 13 R.TRUJILLO, et al., (ECF No. 16) 14 Defendants. FOURTEEN-DAY DEADLINE 15 16 17 Plaintiff Etuate Sekona (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff’s first amended complaint, 19 filed on December 16, 2019, is currently before the Court for screening. (ECF No. 16.) 20 I. Screening Requirement and Standard 21 The Court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 23 §1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 24 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 25 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 26 A complaint must contain “a short and plain statement of the claim showing that the 27 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 28 1 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 2 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 3 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 4 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 5 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 6 To survive screening, Plaintiff’s claims must be facially plausible, which requires 7 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 8 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. 9 Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted 10 unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the 11 plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 12 II. Plaintiff’s Allegations 13 Plaintiff is currently housed at Kern Valley State Prison (“KVSP”), where the events in 14 the complaint are alleged to have occurred. Plaintiff names the following defendants: (1) Raquel 15 Trujillo, Correctional Counselor; (2) L. Martinez, (3) A. Sotelo, and (4) Sillas. 16 Plaintiff was moved to KVSP in November 2016. He saw the ICC committee on 17 November 29, 2016, which let Plaintiff keep his single cell status. On his annual review, on 18 January 25, 2018, his counselor Defendant R. Trujillo, CCII counselor, moved and recommended 19 to ICC committee to deny Plaintiff’s single cell status. Trujillo did this intentionally and with 20 knowledge that Plaintiff’s safety was at risk. Plaintiff asked Trujillo and requested of her that it 21 was a mistake to take him off single cell because he was assaulted once in MCSP (Mule Creek 22 State Prison) on June 24, 2014, causing great harm. Plaintiff is an ADA disability from this 23 assault, uses a wheelchair and unable to defend himself. Plaintiff was afraid of another attack 24 inside by his cell mate again. Trujillo said that he would have to wait for his next annual review 25 in 2019. He told her he would be assaulted again before his next annual review. On November 26 17, 2018, Plaintiff was assaulted by his cell mate causing a concussion, head and face injuries, 27 including bleeding to his brain. He was hospitalized for 2 days and continues to suffer loss of 28 memory loss, dizziness, and headaches. 1 Plaintiff alleges that the four named defendants “intentionally knowledge failure to acted 2 to protected me from another risk or dangerous to my safety and security.” (ECF No. 16, p. 4 3 [text unedited].) Plaintiff alleges a conspiracy with defendant Sillas and the chair of the ICC, 4 Defendant Martinez, which deprived him of his right to protection of single cell status. 5 Plaintiff also complains about being convicted, “wrongfully convicted to C-Status,” which 6 added another 30-60 days to his sentence, and placed in the hole for 6 months. He was also 7 deprived of his food, hot pot, T.V., fan. This was done in retaliation of his first amendment rights 8 “because of my request of single cell.” (ECF No. 16, p.6.) Plaintiff claims that being placed in 9 the hole and adding time to his sentence was violation of his 5th Amendment right against double 10 jeopardy. 11 Plaintiff alleges that Defendant Martinez was the chairman of the ICC on January 10, 12 2019. He, “with intentional knowledge,” conspired with Defendants Trujillo and Sillas to deny 13 Plaintiff’s safety and security from another assault. Plaintiff asked Defendant Sillas several times 14 for single cell status, but Sillas retaliated against Plaintiff and refused to give him single cell 15 status. Plaintiff was put on C-status, in the hole, in discrimination for his race and ADA disability. 16 Plaintiff was not fighting with his cellmate and wrongly convicted. Defendant Sotelo was the 17 hearing officer and heard his case on November 28, 2018 and again on December 29, 2018 18 because of fraudulent reports. There was no investigation or witnesses called in denial of due 19 process. Sotelo was racist. 20 Defendants did this conduct in their individuals and official capacities. Plaintiff seeks 21 damages. 22 III. Discussion 23 A. Federal Rule of Civil Procedure 8 24 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8. Pursuant to 25 Rule 8, a complaint must contain “a short and plain statement of the claim showing that the 26 pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed factual allegations are not required, but 27 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 28 statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must set forth 1 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 2 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual allegations are 3 accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556–557; Moss, 4 572 F.3d at 969. 5 As indicated above, Plaintiff’s complaint is short but it is not a plain statement of his 6 claims. It contains multiple incoherent phrases and conclusory statements. It is less clear than 7 the original complaint. As pled, Plaintiff’s complaint does not clearly and succinctly state what 8 happened or when it happened. Absent clear factual allegations, the Court can neither identify the 9 nature of Plaintiff’s claims nor assess whether he has stated a cognizable claim for relief. 10 B. Official Capacity 11 Plaintiff again sues the individual defendants in their official capacity. To the extent 12 Plaintiff is attempting to pursue damages claims against the named Defendants in their official 13 capacities, he may not do so. “The Eleventh Amendment bars suits for money damages in federal 14 court against a state, its agencies, and state officials in their official capacities.” Aholelei v. Dep’t. 15 of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh 16 Amendment does not bar suits seeking damages against state officials in their personal capacities, 17 Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003), or suits 18 for injunctive relief brought against state officials in their official capacities, Austin v. State 19 Indus. Ins. Sys., 939 F.2d 676, 680 n.2 (9th Cir. 1991). Thus, Plaintiff may only proceed against 20 Defendants in their individual capacities for monetary damages. 21 C. Eighth Amendment - Failure to Protect 22 Although still unclear, it appears that Plaintiff may be attempting to assert a claim for 23 failure to protect him from harm based on the attack by his cellmate, which Plaintiff contends 24 resulted from the Defendants’ removal of his single cell status. 25 Prison officials have a duty under the Eighth Amendment to protect prisoners from 26 violence at the hands of other prisoners because being violently assaulted in prison is simply not 27 part of the penalty that criminal offenders pay for their offenses against society. Farmer v. 28 Brennan, 511 U.S. 825, 83334, 114 S.Ct. 1970, 28 L.Ed.2d 811 (1994); Clem v. Lomeli, 566 F.3d 1 1177, 1181 (9th Cir.2009); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.2005). However, 2 prison officials are liable under the Eighth Amendment only if they demonstrate deliberate 3 indifference to conditions posing a substantial risk of serious harm to an inmate; and it is well 4 settled that deliberate indifference occurs when an official acted or failed to act despite his 5 knowledge of a substantial risk of serious harm. Farmer, 511 U.S. at 834, 841; Clem, 566 F.3d at 6 1181; Hearns, 413 F.3d at 1040. 7 “While the Eighth Amendment requires prison officials to provide prisoners with the basic 8 human needs, including reasonable safety, it does not require that the prisoners be comfortable 9 and provided with every amenity.” Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) ). A 10 housing assignment may be “restrictive and even harsh,” but will not violate the Eighth 11 Amendment unless it “either inflicts unnecessary or wanton pain or is grossly disproportionate to 12 the severity of crimes warranting imprisonment.” Rhodes v. Chapman, 452 U.S. 337, 348–49 13 (1981) (finding inmates had no constitutional right to be housed in single cells). Only where 14 prison officials knew that a housing assignment posed an excessive risk to an inmate's safety will 15 placement with a particular inmate have constitutional implications. Estate of Ford v. Ramirez– 16 Palmer, 301 F.3d 1043, 1050 (9th Cir.2002). 17 An inmate has no constitutional right to a particular security classification or housing. See 18 Meachum v. Fano, 427 U.S. 215, 224–25 (1976) (no liberty interest protected by the Due Process 19 Clause is implicated in a prison's reclassification and transfer decisions); see also Myron v. 20 Terhune, 476 F.3d 716, 718 (9th Cir. 2007). Neither the Eighth nor the Fourteenth Amendment 21 endows prisoners with a right to be housed in a particular part of the prison or with a particular 22 inmate. See Meachum v. Fano, 427 U.S. at, 224–25 (no liberty interest in placement in particular 23 facility); Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir.1993) (no Due Process right to be housed 24 with compatible inmate); Bjorlin v. Hubbard, No. CIV S–09–1793 2010 WL 457685, *1 25 (E.D.Cal. Feb. 4, 2010) (same). 26 Here, Plaintiff fails to adequately allege that any of the named Defendants knew of any 27 specific risk of harm to Plaintiff from an assault by an inmate. At most, Plaintiff alleges that 28 Defendant Trujillo, Silas and Martinez should have known of a risk of harm to Plaintiff because 1 he was harmed at a different state prison by his then cellmate, many years earlier. Plaintiff does 2 not allege that he informed defendants of any specific threat of harm that he faced from his 3 cellmate. Plaintiff does not allege that Plaintiff informed Defendants that this cellmate was a 4 danger or allege anything more than that Plaintiff should have remained single cell because he 5 had been attacked before. Plaintiff merely alleges he was denied single cell status in January 2018 6 and the attack occurred in November 2018. This is an insufficient allegation for an Eighth 7 Amendment claim. Plaintiff has failed to allege plausible facts that the officials knew of and 8 disregarded an excessive risk to inmate health or safety from his cellmate. Despite being advised 9 previously of this deficiency and given leave to amend, Plaintiff has been unable to cure this 10 deficiency. 11 D. Fourteenth Amendment – Due Process - Hearing on RVR 12 “When protected interests are implicated, the right to some kind of prior hearing is 13 paramount....” Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997) (quoting Board of Regents of 14 State Colleges v. Roth, 408 U.S. 564, 569-70 (1972)). However, “[p]rison disciplinary 15 proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant 16 in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). With 17 respect to prison disciplinary proceedings, the minimum procedural requirements that must be 18 met are: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner 19 receives written notice and the time of the hearing, so that the prisoner may prepare his defense; 20 (3)a written statement by the fact finders of the evidence they rely on and reasons for taking 21 disciplinary action; (4) the right of the prisoner to call witnesses in his defense, when permitting 22 him to do so would not be unduly hazardous to institutional safety or correctional goals; and (5) 23 assistance to the prisoner where the prisoner is illiterate or the issues presented are legally 24 complex. Id. at 563-71. As long as the five minimum Wolff requirements are met, due process 25 has been satisfied. Walker v. Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other 26 grounds by Sandin v. Connor, 515 U.S. 472 (1995). In addition, “some evidence” must support 27 the decision of the hearing officer, Superintendent v. Hill, 472 U.S. 445, 455 (1985), and the 28 evidence must have some indicia of reliability, Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1 1987). The “some evidence” standard is not particularly stringent, and the relevant inquiry is 2 whether “there is any evidence in the record that could support the conclusion reached....” Hill, 3 472 U.S. at 455-56. 4 It is unclear from Plaintiff’s allegations what he claims was the Due Process violation at 5 his RVR hearing. Plaintiff claims he was denied witnesses, but this lacks factual specificity such 6 as did he request witnesses, whether they were denied for security issues, and other factual 7 allegations about his to RVR hearings. Thus, Plaintiff’s factual allegations fail to establish that 8 the disciplinary proceeding did not meet the minimum procedural requirements. Despite being 9 advised previously of this deficiency and given leave to amend, Plaintiff has been unable to cure 10 this deficiency. 11 E. Equal Protection 12 Equal protection claims arise when a charge is made that similarly situated individuals 13 are treated differently without a rational relationship to a legitimate state purpose. See San 14 Antonio School District v. Rodriguez, 411 U.S. 1 (1972). Prisoners are protected from invidious 15 discrimination based on race. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Racial 16 segregation is unconstitutional within prisons save for the necessities of prison security and 17 discipline. See Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam). Prisoners are also protected 18 from intentional discrimination on the basis of their religion. See Freeman v. Arpaio, 125 F.3d 19 732, 737 (9th Cir. 1997). Equal protection claims are not necessarily limited to racial and 20 religious discrimination. See Lee v. City of Los Angeles, 250 F.3d 668, 686-67 (9th Cir. 2001) 21 (applying minimal scrutiny to equal protection claim by a disabled plaintiff because the disabled 22 do not constitute a suspect class); see also Tatum v. Pliler, 2007 WL 1720165 (E.D. Cal. 2007) 23 (applying minimal scrutiny to equal protection claim based on denial of in-cell meals where no 24 allegation of race-based discrimination was made); Hightower v. Schwarzenegger, 2007 WL 25 732555 (E.D. Cal. March 19, 2008). 26 In order to state a § 1983 claim based on a violation of the Equal Protection Clause of the 27 Fourteenth Amendment, a plaintiff must allege that defendants acted with intentional 28 discrimination against plaintiff, or against a class of inmates which included plaintiff, and that 1 such conduct did not relate to a legitimate penological purpose. See Village of Willowbrook v. 2 Olech, 528 U.S. 562, 564 (2000) (holding that equal protection claims may be brought by a “class 3 of one”); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Barren v. 4 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Federal Deposit Ins. Corp. v. Henderson, 940 5 F.2d 465, 471 (9th Cir. 1991); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). 6 Plaintiff states conclusory allegations that he was discriminated against by defendants 7 because of his race in being found guilty of a violation for fighting and being assessed 30-60 8 days. Again, Plaintiff has pleaded no facts indicating that he was placed in a double cell due to 9 discrimination on the basis of a protected class. Further, Plaintiff has no pleaded facts that he was 10 assessed 30-60 days because of his race. Plaintiff’s conclusory statement that he was 11 discriminated against because of his race is not sufficient. Despite being advised previously of 12 this deficiency and given leave to amend, Plaintiff has been unable to cure this deficiency. 13 F. Retaliation 14 “Prisoners have a First Amendment right to file grievances against prison officials and to 15 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 16 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) ). “Within the prison context, a 17 viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a 18 state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected 19 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 20 (5)the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 21 408 F.3d 559, 567–68 (9th Cir. 2005). To state a cognizable retaliation claim, Plaintiff must 22 establish a nexus between the retaliatory act and the protected activity. Grenning v. Klemme, 34 23 F.Supp.3d 1144, 1153 (E.D. Wash. 2014). 24 Mere verbal harassment or abuse does not violate the Constitution and, thus, does not give 25 rise to a claim for relief under 42 U.S.C. § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th 26 Cir. 1987). In addition, threats do not rise to the level of a constitutional violation. Gaut v. Sunn, 27 810 F.2d 923, 925 (9th Cir. 1987). 28 Plaintiff’s allegations are conclusory and fail to allege that Defendant Trujillo knew of 1 Plaintiff’s 602 or took any “adverse action” against Plaintiff because of the 602. Although not 2 clear, the allegations suggest that Plaintiff was found guilty of the RVR for fighting, and after 3 that, Plaintiff filed his 602. In addition, Plaintiff has failed to allege the facts for each of the 4 elements of a claim for retaliation. Despite being advised previously of this deficiency and given 5 leave to amend, Plaintiff has been unable to cure this deficiency. 6 G. False Reports/Accusations 7 The creation of false evidence, standing alone, is not actionable under § 1983. See 8 Hernandez v. Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987) (independent right to accurate prison 9 record has not been recognized); Johnson v. Felker, No. 1:12–cv–02719 GEB KJN (PC), 2013 10 WL 6243280, at *6 (E.D. Cal. Dec. 3, 2013) (“Prisoners have no constitutionally guaranteed right 11 to be free from false accusations of misconduct, so the mere falsification of a report does not give 12 rise to a claim under section 1983.”) (citations omitted). Moreover, “plaintiff cannot state a 13 cognizable Eighth Amendment violation based on an allegation that defendant[ ] issued a false 14 rule violation against plaintiff.” Jones v. Prater, No. 2:10-cv-01381 JAM KJN P, 2012 WL 15 1979225, at *2 (E.D. Cal. Jun. 1, 2012); see also Youngs v. Barretto, No. 2:16-cv-0276 JAM AC 16 P, 2018 WL 2198707, at *3 (E.D. Cal. May 14, 2019) (noting that issuance of false rules violation 17 report does not rise to the level of cruel and unusual punishment) (citations omitted). 18 Plaintiff cannot state a claim for falsely being accused of an RVR for fighting. 19 H. Habeas Corpus and Double Jeopardy 20 Plaintiff is challenging the 30-60 day length of confinement of his RVR conviction. 21 “Federal law opens two main avenues to relief on complaints related to imprisonment: a 22 petition for writ of habeas corpus, 28 U.S.C. § 2254, and a complaint under...42 U.S.C. § 1983.” 23 Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). “Challenges to the validity of any 24 confinement or to particulars affecting its duration are the province of habeas corpus; requests for 25 relief turning on circumstances of confinement may be presented in a § 1983 action.” Id. (internal 26 citation omitted). It has long been established that state prisoners cannot challenge the fact or 27 duration of their confinement in a section 1983 action and their sole remedy lies in habeas corpus 28 relief. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). Often referred to as the favorable termination 1 rule or the Heck bar, this exception to section 1983’s otherwise broad scope applies whenever 2 state prisoners “seek to invalidate the duration of their confinement-either directly through an 3 injunction compelling speedier release or indirectly through a judicial determination that 4 necessarily implies the unlawfulness of the State’s custody.” Wilkinson, 544 U.S. at 81; Heck v. 5 Humphrey, 512 U.S. 477, 482, 486-487 (1994); Edwards v. Balisok, 520 U.S. 641, 644 (1997). 6 In Heck, the Supreme Court held that in order to recover damages for alleged 7 “unconstitutional conviction or imprisonment, or for other harm caused by actions whose 8 unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the 9 conviction or sentence has been reversed on direct appeal, expunged by executive order, declared 10 invalid by a state tribunal authorized to make such determination, or called into question by a 11 federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” 512 U.S. at 486. Thus, “a 12 state prisoner’s § 1983 action is barred (absent prior invalidation)-no matter the relief sought 13 (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to 14 conviction or internal prison proceedings)-if success in that action would necessarily demonstrate 15 the invalidity of confinement or its duration.” Wilkinson, 544 U.S. at 81-82. 16 Plaintiff may not proceed in a civil rights action to challenge the validity of his sentence. 17 His exclusive method is by an action for a writ of habeas corpus. 18 Plaintiff also claims a violation of double jeopardy because he was tried twice for the 19 same rules violation. 20 The Double Jeopardy Clause precludes “a second prosecution for the same offense,” and 21 prevents “the State from ‘punishing twice, or attempting a second time to punish criminally, for 22 the same offense.’ ” Kansas v. Hendricks, 521 U.S. 346, 369, 117 S.Ct. 2072, 138 L.Ed.2d 501 23 (1997), quoting Witte v. United States, 515 U.S. 389, 396, 115 S.Ct. 2199, 132 L.Ed.2d 351 24 (1995). 25 To the extent Plaintiff is attempting to plead a double jeopardy claim, his federal legal 26 remedy lies in a writ of habeas corpus. When a prisoner challenges the legality or duration of his 27 custody, or raises a constitutional challenge which could entitle him to an earlier release, his sole 28 federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 485–86, 93 S.Ct. 1 1827, 36 L.Ed.2d 439 (1973); Young v. Kenny, 907 F.2d 874, 875 (9th Cir.1990), cert. denied 11 2 S.Ct. 1090 (1991). 3 I. Americans with Disabilities Act 4 Plaintiff refers to himself as an ADA inmate, and it is unclear if he is asserting ADA 5 claims. 6 Title II of the ADA “prohibit[s] discrimination on the basis of disability.” Lowell v. 7 Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). However, Plaintiff cannot bring an action under 8 42 U.S.C. § 1983 against a State official in his or her individual capacity to vindicate rights 9 created by Title II of the ADA. See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002). 10 Additionally, treatment, lack of treatment, or misdiagnosis will not support such a claim. 11 The ADA prohibits discrimination because of disability, not inadequate treatment for disability. 12 Simmons, 609 F.3d at 1022, overruled on other grounds by Castro v. Cty. of Los Angeles, 833 13 F.3d 1060, 1071 (9th Cir. 2016); see also Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) 14 (“[T]he Act would not be violated by a prison’s simply failing to attend to the medical needs of 15 its disabled prisoners .... The ADA does not create a remedy for medical malpractice.”). 16 Inadequate treatment or lack of treatment for Plaintiff's medical condition does not in itself 17 suffice to create liability under the ADA. Tandel v. Cty. of Sacramento, 2015 WL 1291377, at 18 *18 (E.D. Cal. Mar. 20, 2015). Thus, Plaintiff's complaint regarding treatment decisions are not 19 sufficient. Bryant, 84 F.3d at 249 (“No discrimination is alleged; Bryant was not treated worse 20 because he was disabled. His complaint is that he was not given special accommodation.”) 21 J. Conspiracy 22 To establish a cognizable claim for conspiracy under 42 U.S.C. § 1983, a plaintiff must 23 allege (1) the existence of an express or implied agreement among the defendants to deprive the 24 plaintiff of his constitutional rights, and (2) an actual deprivation of those rights resulting from 25 that agreement. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010). To establish a conspiracy, 26 Plaintiff allege specific facts showing “an agreement or meeting of the minds to violate 27 constitutional rights. To be liable, each participant in the conspiracy need not know the exact 28 details of the plan, but each participant must at least share the common objective of the 1 conspiracy.” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (internal citations and quotation 2 marks omitted). The mere conclusory statement that defendants “conspired” together is not 3 sufficient to state a cognizable claim. Woodrum v. Woodward Cnty., 866 F.2d 1121, 1126 (9th 4 Cir. 1989). 5 Here, Plaintiff asserts that Trujillo, Martinez, Sotelo and Sillas are acting, and, in the past, 6 have acted, jointly together to obstruct, deny, delay, and deprive Plaintiff of his right to single cell 7 status. However, Plaintiff has failed to allege any specific facts showing the existence of an 8 agreement, or a meeting of the minds, among specified Defendants to deprive Plaintiff of his 9 constitutional rights. Moreover, Plaintiff does not have a constitutional right to single cell status. 10 Therefore, Plaintiff has not alleged a cognizable claim for conspiracy. 11 IV. Conclusion and Order 12 For the reasons discussed herein, Plaintiff’s first amended complaint fails to state a 13 cognizable claim for relief. Despite being provided with the relevant pleading and legal standards 14 in the Court’s prior order screening Plaintiff’s original complaint, Plaintiff has been unable to 15 cure the identified deficiencies and further leave to amend is not warranted. Lopez v. Smith, 203 16 F.3d 1122, 1130 (9th Cir. 2000). 17 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, with 18 prejudice, for failure to state a cognizable claim upon which relief may be granted. 19 These findings and recommendation will be submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 21 days after being served with these findings and recommendation, Plaintiff may file written 22 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 23 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 24 /// 25 /// 26 /// 27 /// 28 /// 1 specified time may result in the waiver of the “right to challenge the magistrate’s factual 2 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 3 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 IT IS SO ORDERED. 5 6 Dated: December 27, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28