(PC) Nicklas v. Kokor ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVE ROCKY NICKLAS, Case No. 1:18-cv-00119-LJO-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT: 1) PLAINTIFF’S 13 v. MOTION FOR LEAVE TO AMEND BE GRANTED; 2) THIS CASE PROCEED ON 14 W. KOKOR and MS. MATA, PLAINTIFF’S CLAIM AGAINST DEFENDANT MATA FOR FAILURE TO PROTECT IN VIOLATION OF THE EIGHTH 15 Defendants. AMENDMENT, AND ON HIS CLAIMS AGAINST DEFENDANT KOKOR FOR 16 SEXUAL ASSAULT IN VIOLATION OF THE EIGHTH AMENDMENT, EXCESSIVE FORCE 17 IN VIOLATION OF THE EIGHTH AMENDMENT, DELIBERATE 18 INDIFFERENCE TO SERIOUS MEDICAL NEEDS IN VIOLATION OF THE EIGHTH 19 AMENDMENT, AND RETALIATION IN VIOLATION OF THE FIRST AMENDMENT; 20 AND 3) ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED 21 OBJECTIONS, IF ANY, DUE WITHIN 22 TWENTY-ONE DAYS 23 ORDER DENYING MISCELLANEOUS REQUESTS 24 (ECF NOS. 47 & 52) 25 26 Steve Rocky Nicklas (“Plaintiff”) is a state prisoner proceeding pro se and in forma 27 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case is currently 28 proceeding “on Plaintiff’s claim against Defendant Mata for failure to protect in violation of the 1 Eighth Amendment, and his claims against Defendant Kokor for sexual assault in violation of the 2 Eighth Amendment, deliberate indifference to serious medical needs in violation of the Eighth 3 Amendment, and for retaliation in violation of the First Amendment.” (ECF No. 12, p. 9). 4 On July 30, 2019, Plaintiff filed a motion for leave to amend his complaint, along with a 5 copy of the proposed amended complaint. (ECF Nos. 47 & 48). On August 12, 2019, 6 Defendants filed their opposition to the motion. (ECF No. 49). On August 21, 2019, Plaintiff 7 filed his reply. (ECF No. 52). Plaintiff included various requests for relief in his reply. 8 For the reasons described below, the Court recommends that Plaintiff’s motion for leave 9 to amend be granted; that this case proceed on Plaintiff’s claim against Defendant Mata for failure 10 to protect in violation of the Eighth Amendment, and on his claims against Defendant Kokor for 11 sexual assault in violation of the Eighth Amendment, excessive force in violation of the Eighth 12 Amendment, deliberate indifference to serious medical needs in violation of the Eighth 13 Amendment, and retaliation in violation of the First Amendment; and that all other claims and 14 defendants be dismissed. 15 I. PLAINTIFF’S MISCELLANEOUS REQUESTS FOR RELIEF1 16 In his motion for leave to amend, Plaintiff asks the Court to order Defendants to 17 identify the Doe Defendants. The Court will deny this request because it is not the appropriate 18 way to request this information. If Plaintiff wants discovery from Defendants, he should first 19 serve a discovery request on Defendants. If Defendants are unable to provide the requested 20 information, Plaintiff may file a motion for a third party subpoena, as explained in the Court’s 21 scheduling order. (See ECF No. 69, p. 4). 22 Plaintiff makes four additional requests in his reply. First, Plaintiff “suggests” that a 23 “meet and confer” hearing be set regarding Plaintiff’s proposed amendments. Given that the 24 Court is recommending that Plaintiff’s motion to amend be granted, this request will be denied. 25 Second, Plaintiff requests that Felipe Garcia be permitted to assist him in any/all future 26 conferences related to this case. Plaintiff previously made this request (ECF No. 51), it was 27 1 The Court notes that, going forward, Plaintiff should not include miscellaneous requests for relief 28 throughout his motions and replies. 1 denied (ECF No. 53), and it will be denied again. As the Court noted in the order denying 2 Plaintiff’s previous request, Plaintiff may renew this request “when the telephonic trial 3 confirmation hearing is less than two months away.” (Id. at 2). 4 Third, Plaintiff attaches an exhibit, and requests that the Court take judicial notice of it. 5 As the exhibit does not appear to be relevant to the motion currently before the Court, the Court 6 will deny Plaintiff’s request for judicial notice. 7 Finally, Plaintiff requests a copy of his original complaint. However, Plaintiff does not 8 explain why he needs a copy of the original complaint. Therefore, Plaintiff’s request will be 9 denied. 10 II. PLAINTIFF’S ORIGINAL COMPLAINT 11 Plaintiff brought this action against primary care physician W. Kokor and medical 12 employee M. Mata. Plaintiff alleges that Defendant Dr. Kokor sexually assaulted Plaintiff during 13 a rectal examination on May 5, 2017, at or about 12:45 P.M., in the presence of Defendant Mata. 14 It appears that the events described in the complaint took place at Substance Abuse Treatment 15 Facility (“SATF”) in Corcoran, California. 16 Plaintiff’s neurosurgeon scheduled an appointment for Plaintiff to see Defendant Kokor 17 on May 5, 2017. On the day of the appointment, Defendant Kokor summoned Plaintiff into his 18 office, told him to pull his pants down, and called Defendant Mata in, who commented, “I already 19 know,” and proceeded to laugh with Defendant Kokor. Plaintiff further alleges that Defendant 20 Kokor “stuck his finger in [Plaintiff’s] rectum in a very vicious manner….” Plaintiff told 21 Defendant Kokor to get off of him and Defendant Kokor “backed up and said, ‘I have to examine 22 you’ and started to apologize.” Defendant Kokor proceeded to administer a second rectal exam. 23 Plaintiff alleges that in the second exam, Defendant Kokor “moved his finger back and forth 24 viciously, and it felt to [Plaintiff] like more than one finger.” Plaintiff told Defendant Kokor to 25 get off of him and proceeded to get dressed. In response, Defendant Kokor asked Plaintiff to 26 hand over his mobility vest, which Plaintiff relied on following lower spine surgery. Five months 27 after the alleged sexual assault, Plaintiff learned that Defendant Kokor also took away his lower 28 tier chrono. 1 The Court screened Plaintiff’s complaint, and ordered that this case proceed “on 2 Plaintiff’s claim against Defendant Mata for failure to protect in violation of the Eighth 3 Amendment, and his claims against Defendant Kokor for sexual assault in violation of the Eighth 4 Amendment, deliberate indifference to serious medical needs in violation of the Eighth 5 Amendment, and for retaliation in violation of the First Amendment.” (ECF No. 12, p. 9). 6 III. PLAINTIFF’S MOTION FOR LEAVE TO AMEND 7 a. Plaintiff’s Position 8 Plaintiff alleges that he cannot read or write, and that he has no legal knowledge. (ECF 9 No. 47, p. 1). An inmate was assisting him, but that inmate was transferred to a different facility. 10 (Id.). A different inmate is now assisting Plaintiff. (Id. at 2). This inmate has “some” legal 11 experience. (Id.). 12 Plaintiff states that he needs to amend his complaint because it clearly “misses critical 13 facts that are relevant.” (Id. at 1). Plaintiff seeks to add claims against two correctional officers, 14 a correctional sergeant, and a correctional lieutenant. (Id. at 2). The correctional officers were 15 personally involved in the allegations and were required to write incident reports. (Id. at 1-2). 16 The correctional sergeant and correctional lieutenant disregarded Plaintiff’s request for assistance 17 to report the incident. (Id. at 2). 18 b. Defendants’ Position 19 Defendants argue that leave to amend should be denied because the request for 20 amendment was made in bad faith. (ECF No. 49, p. 3). “Most notably, there is no explanation 21 from Plaintiff as to why new facts are being raised more than eighteen months after the filing of 22 the operative complaint. There has been no showing of diligence, or investigative measures taken 23 by Plaintiff, that would explain why these new allegations and defendants are coming to light. 24 Simply stated, the parties[’] respective version of the events has not changed. And, Plaintiff has 25 failed to provide the Court with a valid explanation as to why these new claims could not have 26 been pled eighteen months ago.” (Id.). 27 Additionally, Defendants argue that allowing Plaintiff to amend his complaint would 28 prejudice Defendants. (Id. at 4). “The proposed amended complaint would add four DOE 1 officers and new claims against Dr. Kokor and Nurse Mata. However, Defendants have already 2 investigated and participated in initial disclosures for Plaintiff’s current claims, and filed an 3 answer in accordance with those allegations. To allow Plaintiff to amend his complaint—with 4 allegations he was aware of at the time he initially filed his complaint—forces Defendants to 5 restart their investigation and research into Plaintiff’s new claims. Furthermore, Defendants 6 would have to move the Court to amend the current scheduling order and object to the current 7 scheduling order which prevents Defendants from propounding any written discovery without 8 leave of court. In sum, granting amendment stalls these proceedings indefinitely and prejudices 9 Defendants.” (Id.). 10 Finally, Defendants argue that the proposed amendments are futile. (Id.). “Defendants 11 Kokor and Mata answered Plaintiff’s complaint and are still determining whether an exhaustion 12 defense for the currently-identified claims is viable. However, there has been no showing that an 13 appeal against the DOE officers or an appeal for these new facts has been submitted to the 14 institution in any manner.” (Id.). “[I]n all likelihood, Plaintiff’s proposed amendment would be 15 subject to an exhaustion defense, and months down the line, the parties would be back litigating 16 the same claims that Plaintiff previously raised. Adding unexhausted claims to this litigation is 17 simply futile.” (Id.) (emphasis in original). 18 “Plaintiff’s Doe pleading for the officers’ alleged misconduct is also futile. As a general 19 rule, Doe pleading is improper in federal court.” (Id. at 5). 20 “Lastly, Plaintiff’s state-law claims of negligence and malpractice require compliance 21 with the Government Claims Act. Presentation of a written claim, and action on, or rejection of 22 the claim are conditions precedent to suit. Thus, Plaintiff’s new claims concerning malpractice 23 and negligence would be subject to dismissal for failure to comply with the Government Claims 24 Act. Accordingly, permitting amendment for these claims would be futile and this factor weighs 25 against amendment.” (Id.) (citations omitted). 26 c. Legal Standards for Amendment 27 Courts “should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 28 15(a)(2). “[T]his policy is to be applied with extreme liberality.” Morongo Band of Mission 1 Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). See also Waldrip v. Hall, 548 F.3d 729, 2 732 (9th Cir. 2008). “However, liberality in granting leave to amend is subject to several 3 limitations. Those limitations include undue prejudice to the opposing party, bad faith by the 4 movant, futility, and undue delay.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 5 F.3d 1047, 1058 (9th Cir. 2011) (internal quotation marks and citations omitted). See also 6 Waldrip, 548 F.3d at 732. “[T]he consideration of prejudice to the opposing party [] carries the 7 greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 8 d. Analysis 9 The Court will recommend that Plaintiff’s motion for leave to amend be granted. There is 10 no indication that Plaintiff filed his motion in bad faith. Plaintiff has alleged that he cannot read 11 or write, and that he is now receiving assistance from an inmate who has legal experience. This 12 appears to explain why Plaintiff is now attempting to amend his complaint, and Defendants have 13 not submitted any evidence suggesting Plaintiff’s explanation is inaccurate. 14 Additionally, it does not appear that amendment would prejudice Defendants. Plaintiff’s 15 motion for leave to amend was filed less than two weeks after the scheduling conference was 16 held. Moreover, in screening Plaintiff’s amended complaint, the Court will recommend that 17 Plaintiff only be allowed to add one claim against Defendant Kokor, which is based on the same 18 allegations that are already proceeding in this case. Thus, there appears to be little to no prejudice 19 to Defendants.2 20 As to Defendants’ argument that it would be futile to allow Plaintiff to add Doe 21 Defendants and state law claims, for the reasons described below, Defendants are correct. 22 However, as Plaintiff has stated an additional claim that should proceed past screening, the Court 23 recommends granting Plaintiff’s motion for leave to amend but screening out the state law claims 24 and the claims against the Doe Defendants. 25 Based on the foregoing, the Court will recommend that Plaintiff’s motion for leave to 26 amend be granted, but that only certain claims be allowed to proceed, as described below. 27 2 To the extent Defendants believe that they need to conduct additional discovery based on the facts alleged 28 in the amended complaint, they may file an appropriate motion. 1 IV. SCREENING OF AMENDED COMPLAINT 2 a. Screening Requirement 3 The Court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 7 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 8 As Plaintiff is proceeding in forma pauperis (ECF No. 11), the Court may also screen the 9 complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that 10 may have been paid, the court shall dismiss the case at any time if the court determines that the 11 action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 12 1915(e)(2)(B)(ii). 13 A complaint is required to contain “a short and plain statement of the claim showing that 14 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 15 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 17 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 18 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 19 Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting this 20 plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are not 21 required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 22 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a plaintiff’s legal 23 conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 24 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 25 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 26 pro se complaints should continue to be liberally construed after Iqbal). 27 b. Summary of Plaintiff’s Amended Complaint 28 On May 5, 2017, Plaintiff was scheduled for a medical appointment at the Facility “E” 1 PCP clinic at 12:30 A.M. The appointment was set by a neurosurgeon to follow up and evaluate 2 Plaintiff’s incontinence after a surgical procedure performed on April 13, 2016. 3 Plaintiff arrived at “E” yard PCP and proceeded to turn over his prison identification card 4 and inmate priority pass to Defendant correctional officers John Doe 3 and John Doe 4, who were 5 assigned to post at “E” yard PCP clinic. Plaintiff was ordered into a holding cell. 6 Approximately one hour later, Plaintiff was escorted into an examination room. 7 Defendant Dr. Kokor3 asked Plaintiff to remove his pants, drop his boxers, and face the wall. As 8 Plaintiff walked towards the wall, Defendant LVN Mata was called. Defendant Mata “stated with 9 a burlesque tone ‘I already know[,]’ and laughed.” 10 While Plaintiff was bent over a bed facing the wall, Defendant Kokor put on latex gloves 11 and, without warning or lubrication, stuck two fingers into Plaintiff’s rectum in a very violent and 12 vicious manner. Plaintiff yelled at him to stop, and asked him to explain what he was doing. 13 Defendant Kokor answered with an apology, and in a nervous tone informed Plaintiff that the 14 neurosurgeon had ordered an anal exam. Defendant Kokor then again stuck two fingers into 15 Plaintiff’s rectum, with such force that it caused extreme pain. 16 Plaintiff got off the table and yelled “get the fuck off me!!” At that time Defendant Mata 17 ran outside and summoned Defendants John Doe 3 and John Doe 4. Plaintiff complained about 18 the use of force and vicious sexual assault, and notified Defendant Kokor of legal action and a 19 staff complaint. Defendant Kokor threatened to take Plaintiff’s mobility vest and cane once 20 Plaintiff told him a staff complaint would be filed to report the sexual assault and medical 21 negligence. 22 Then, Defendants John Doe 3 and John Doe 4 walked in to the examination room, and 23 Defendant Kokor stated in a loud voice “this meeting is over.” Defendant Kokor ordered Plaintiff 24 to turn over his mobility vest and cane, which were assigned to Plaintiff due to complications 25 after spinal surgery on April 13, 2016. Defendant Kokor also deleted the “durable medical 26 equipment” from SOMS (offender details), canceled Plaintiff’s accommodation chronos for a 27 3 It is unclear why, but in his proposed amended complaint, Plaintiff refers to Defendant Kokor as “Koker.” 28 The Court will continue to refer to this defendant as Defendant Kokor. 1 mobility vest and a cane, and removed Plaintiff’s housing restrictions for ground floor (limited 2 stairs) and lower/bottom bunk only. 3 Defendant Kokor did not follow established medical procedures in conducting the 4 examination. The procedure requires the doctor to put one lubricated and gloved finger into the 5 rectum of a patient. 6 On May 6, 2017, after breakfast, Plaintiff approached Defendant John Doe 2, who was the 7 assigned yard sergeant. John Doe 1, a correctional lieutenant, was also present. Plaintiff 8 informed these defendants about the incident with Defendants Kokor and Mata. Plaintiff asked 9 for assistance to report the incident, due to his documented disabilities. Both of these defendants 10 stated that they could not help Plaintiff and ordered him to return to his housing unit. 11 During morning day room, Plaintiff sought assistance from inmates. Plaintiff explained 12 what happened during the examination, and inmates assisted him in preparing and submitting a 13 staff complaint. 14 c. Analysis of Plaintiff’s Claims 15 i. Sexual Assault 16 Sexual harassment or abuse of an inmate by a corrections employee is a violation of the 17 Eighth Amendment. Wood v. Beauclair, 692 F.3d 1041, 1045-46 (9th Cir. 2012) (citing Schwenk 18 v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000)) (“In the simplest and most absolute of terms ... 19 prisoners [have a clearly established Eighth Amendment right] to be free from sexual abuse....”). 20 “[S]exual contact between a prisoner and a prison [employee] serves no legitimate role and is 21 simply not part of the penalty that criminal offenders pay for their offenses against society. 22 Where there is no legitimate penological purpose for a prison official's conduct, courts have 23 ‘presum[ed] malicious and sadistic intent.’” Wood, 692 F.3d at 1050-51 (quoting Giron v. Corr. 24 Corp. of Am., 191 F.3d 1281, 1290 (10th Cir. 1999)). Even sexual contact that is not violent and 25 leaves no physical injury is presumed unlawful when committed with malicious and sadistic 26 intent. Id. 27 Plaintiff alleged that, during a rectal exam, Defendant Kokor stuck two fingers into 28 Plaintiff’s rectum, without lubrication, and in a violent and vicious manner. Defendant Kokor 1 apologized, but then again stuck two fingers into Plaintiff’s rectum with such force that it caused 2 extreme pain. 3 The Court finds that Plaintiff’s allegations are sufficient to allow his claim against 4 Defendant Kokor for sexual assault in violation of the Eighth Amendment to proceed past 5 screening. 6 ii. Excessive Force 7 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 8 restraints on prison officials, who may not ... use excessive physical force against prisoners.” 9 Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[W]henever prison officials stand accused of 10 using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is 11 ... whether force was applied in a good-faith effort to maintain or restore discipline, or 12 maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). 13 When determining whether the force was excessive, the court looks to the “extent of 14 injury suffered by an inmate ..., the need for application of force, the relationship between that 15 need and the amount of force used, the threat ‘reasonably perceived by the responsible officials,’ 16 and ‘any efforts made to temper the severity of a forceful response.’” Hudson, 503 U.S. at 7 17 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). While de minimis uses of physical force 18 generally do not implicate the Eighth Amendment, significant injury need not be evident in the 19 context of an excessive force claim, because “[w]hen prison officials maliciously and sadistically 20 use force to cause harm, contemporary standards of decency always are violated.” Hudson, 503 21 U.S. at 9. 22 Plaintiff alleges that, during a rectal exam, Defendant Kokor stuck two fingers into 23 Plaintiff’s rectum, without lubrication, and in a violent and vicious manner. Defendant Kokor 24 apologized, but then again stuck two fingers into Plaintiff’s rectum, with such force that it caused 25 extreme pain. Additionally, Plaintiff alleges that, according to established procedures, Defendant 26 Kokor was only supposed to insert one finger, and was supposed to use lubrication. 27 The Court finds that Plaintiff has sufficiently alleged that Defendant Kokor used force 28 maliciously and sadistically to cause harm. Thus, Plaintiff’s claim against Defendant Kokor for 1 excessive force in violation of the Eighth Amendment should proceed past screening. 2 iii. Deliberate Indifference to Serious Medical Needs 3 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 4 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 5 1096 (9th Cir. 2006), (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires 6 Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s 7 condition could result in further significant injury or the unnecessary and wanton infliction of 8 pain,’” and (2) that “the defendant's response to the need was deliberately indifferent.” Id. 9 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation and internal 10 quotations marks omitted), overruled on other grounds by WMX Technologies v. Miller, 104 11 F.3d 1133 (9th Cir. 1997) (en banc)). 12 Deliberate indifference is established only where the defendant subjectively “knows of and 13 disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 14 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). Deliberate 15 indifference can be established “by showing (a) a purposeful act or failure to respond to a 16 prisoner's pain or possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d 17 at 1096 (citation omitted). Civil recklessness (failure “to act in the face of an unjustifiably high 18 risk of harm that is either known or so obvious that it should be known”) is insufficient to 19 establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 836-37 & n.5 20 (1994) (citations omitted). 21 A difference of opinion between an inmate and prison medical personnel—or between 22 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 23 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 24 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Additionally, “a complaint that a 25 physician has been negligent in diagnosing or treating a medical condition does not state a valid 26 claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 27 become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 28 106. To establish a difference of opinion rising to the level of deliberate indifference, a “plaintiff 1 must show that the course of treatment the doctors chose was medically unacceptable under the 2 circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 3 Plaintiff alleges that, after he complained about the vicious assault and notified Defendant 4 Kokor of legal action and a staff complaint, Defendant Kokor threatened to take Plaintiff’s 5 mobility vest and cane (which were assigned to Plaintiff due to complications after a spinal 6 surgery). Defendant Kokor then took his mobility vest and cane. Defendant Kokor also deleted 7 the “durable medical equipment” from SOMS (offender details), canceled Plaintiff’s 8 accommodation chronos for a mobility vest and a cane, and removed Plaintiff’s housing 9 restrictions for ground floor (limited stairs) and lower/bottom bunk only. 10 Plaintiff has sufficiently alleged that Defendant Kokor took necessary medical 11 accommodations from Plaintiff not for medical reasons, but in retaliation for Plaintiff’s actions. 12 Accordingly, the Court finds that Plaintiff’s claim against Defendant Kokor for deliberate 13 indifference to serious medical needs in violation of the Eighth Amendment should proceed past 14 screening. 15 However, the Court also finds that Plaintiff failed to state a claim for deliberate 16 indifference to serious medical needs against any other defendant. Based on Plaintiff’s 17 allegations, it appears that only Defendant Kokor was responsible for taking necessary medical 18 accommodations from Plaintiff. 19 iv. Failure to Protect 20 To establish a failure to protect claim, the prisoner must establish that prison officials 21 were deliberately indifferent to a sufficiently serious threat to the prisoner’s safety. Farmer v. 22 Brennan, 511 U.S. 825, 837 (1994). “‘Deliberate indifference’ has both subjective and objective 23 components.” Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013). The prisoner 24 must show that “the official [knew] of and disregard[ed] an excessive risk to inmate... safety; the 25 official must both be aware of facts from which the inference could be drawn that a substantial 26 risk of serious harm exists, and [the official] must also draw the inference.” Farmer, 511 U.S. at 27 837. “Liability may follow only if a prison official ‘knows that inmates face a substantial risk of 28 serious harm and disregards that risk by failing to take reasonable measures to abate it.’” 1 Labatad, 714 F.3d at 1160 (quoting Farmer, 511 U.S. at 847). 2 Plaintiff alleges that Defendant Mata was present in the medical examination room during 3 the assault by Defendant Kokor. Despite being present when assault was occurring, Defendant 4 Mata did not do anything to protect Plaintiff from the assault. 5 The Court finds that these allegations are sufficient to allow Plaintiff’s failure to protect 6 claim against Defendant Mata to proceed past screening. 7 However, the Court also finds that Plaintiff failed to state a failure to protect claim against 8 any other defendant. Plaintiff alleges that Defendant John Doe 1, Defendant John Doe 2, 9 Defendant John Doe 3, and Defendant John Doe 4 failed to promptly report the incident. 10 However, this alone is not sufficient to establish a failure to protect claim. As described above, 11 Plaintiff must sufficiently allege that these defendants knew of and disregarded an excessive risk 12 to Plaintiff’s safety. Here, the alleged assault was over by the time these four defendants got 13 involved, and there are no allegations suggesting that Plaintiff was at risk of being assaulted 14 again. Accordingly, Plaintiff has failed to state a claim against these defendants for failure to 15 protect. Plaintiff’s failure to protect claim against Defendant Mata based solely on her failure to 16 report does not state a cognizable claim for the same reason. 17 v. Retaliation 18 A retaliation claim requires “five basic elements: (1) an assertion that a state actor took 19 some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and 20 that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action 21 did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 22 567-68 (9th Cir. 2005) (footnote omitted); accord Watson v. Carter, 668 F.3d 1108, 1114-15 (9th 23 Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). 24 While prisoners have no freestanding right to a prison grievance process, see Ramirez v. 25 Galaza, 334 F.3d 850, 860 (9th Cir.2003), “a prisoner's fundamental right of access to the courts 26 hinges on his ability to access the prison grievance system,” Bradley v. Hall, 64 F.3d 1276, 1279 27 (9th Cir.1995), overruled on other grounds by Shaw v. Murphy, 532 U.S. 223, 230 n.2 (2001). 28 Because filing administrative grievances and initiating civil litigation are protected activities, it is 1 impermissible for prison officials to retaliate against prisoners for engaging in these activities. 2 Rhodes, 408 F.3d at 567. 3 Plaintiff alleges that, after he complained about the vicious assault and notified Defendant 4 Kokor of legal action and a staff complaint, Defendant Kokor threatened to take Plaintiff’s 5 mobility vest and cane (which were assigned to Plaintiff due to complications after a spinal 6 surgery). Defendant Kokor then took his mobility vest and cane. Defendant Kokor also deleted 7 the “durable medical equipment” from SOMS (offender details), canceled Plaintiff’s 8 accommodation chronos for a mobility vest and a cane, and removed Plaintiff’s housing 9 restrictions for ground floor (limited stairs) and lower/bottom bunk only. 10 The Court finds that Plaintiff’s allegations are sufficient to allow his claim against 11 Defendant Kokor for retaliation in violation of the First Amendment to proceed past screening. 12 vi. Fourteenth Amendment 13 Plaintiff’s Fourteenth Amendment claim fails because it violates Federal Rule of Civil 14 Procedure 8(a). “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 15 exceptions.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513 (2002). A complaint must 16 contain “a short and plain statement of the claim showing that the pleader is entitled to 17 relief.” Fed. R. Civ. Pro. 8(a)(2). “Such a statement must simply give the defendant fair notice of 18 what the plaintiff's claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 19 512 (internal quotation marks and citation omitted). Detailed factual allegations are not required, 20 but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 21 statements, do not suffice.” Iqbal, 556 U.S. at 678. Plaintiff must set forth “sufficient factual 22 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. 23 Plaintiff states that he is bringing a claim against all Defendants under the Fourteenth 24 Amendment, and proceeds to list regulations, laws, and constitutional amendments that he 25 believes were violated. This does not satisfy Rule 8. Plaintiff does not explain how the facts 26 alleged relate to any of the listed regulations, laws, or constitutional amendments, or how the 27 violation of these regulations, laws, and constitutional amendments violated his Fourteenth 28 Amendment rights. There are also no allegations that demonstrate that each defendant is 1 responsible for the alleged violations.4 2 vii. State Law Claims 3 California’s Government Claims Act5 requires that a tort claim against a public entity or 4 its employees be presented to the California Victim Compensation and Government Claims 5 Board, formerly known as the State Board of Control, no more than six months after the cause of 6 action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950–950.2. Presentation of a 7 written claim, and action on or rejection of the claim are conditions precedent to suit. State v. 8 Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1245 (Cal. 2004); Mangold v. 9 California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against 10 a public entity or employee, a plaintiff must allege compliance with the Government Claims Act. 11 Bodde, 32 Cal.4th at 1245; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police Dept., 12 839 F.2d 621, 627 (9th Cir. 1988). 13 Plaintiff brings state law claims, including a negligence claim and a medical malpractice. 14 However, Plaintiff failed to allege compliance with California’s Government Claims Act. 15 Therefore, the Court finds that Plaintiff has failed to state any cognizable state law claims. 16 V. RECOMMENDATION AND ORDER 17 Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that: 18 1. Plaintiff’s motion for leave to amend be GRANTED; 19 2. The Clerk of Court be directed to file Plaintiff’s proposed amended complaint; 20 3. This case proceed on Plaintiff’s claim against Defendant Mata for failure to protect 21 in violation of the Eighth Amendment, and on his claims against Defendant Kokor 22 for sexual assault in violation of the Eighth Amendment, excessive force in 23 violation of the Eighth Amendment, deliberate indifference to serious medical 24 needs in violation of the Eighth Amendment, and retaliation in violation of the 25 4 A plaintiff must demonstrate that each named defendant personally participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual connection or link between the actions of 26 the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 695 (1978). 27 5 This Act was formerly known as the California Tort Claims Act. City of Stockton v. Superior Court, 42 Cal. 4th 730, 741-42 (Cal. 2007) (adopting the practice of using Government Claims Act rather than California Tort 28 Claims Act). 1 First Amendment; 2 4. All other claims and defendants be DISMISSED; and 3 5. Defendants be given twenty-one days to file a responsive pleading to the amended 4 complaint. 5 These findings and recommendations are submitted to the United States district judge 6 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one 7 | (21) days after being served with these findings and recommendations, any party may file written 8 | objections with the court. Such a document should be captioned “Objections to Magistrate 9 | Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed 10 | within seven (7) days after service of the objections. The parties are advised that failure to file 11 | objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 12 | Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 13 | (9th Cir. 1991)). 14 Additionally, IT IS ORDERED that: 15 1. Plaintiff's request for the Court to order Defendants to identify the Doe 16 Defendants is DENIED; 17 2. Plaintiffs request for a meet and confer hearing is DENIED; 18 3. Plaintiffs request that Felipe Garcia be permitted to assist him in any/all future 19 conferences related to this case is DENIED, without prejudice; 20 4. Plaintiffs request for judicial notice is DENIED; and 21 5. Plaintiff's request for a copy of his original complaint is DENIED. 22 73 IT IS SO ORDERED. | Dated: _ January 31, 2020 [Je hey — 25 UNITED STATES MAGISTRATE JUDGE 26 27 28