(PC) Lamon v. Mey ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BARRY LOUIS LAMON, No. 2: 20-cv-1474 KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 S. MEY, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On August 4, 2020, the undersigned granted plaintiff thirty days to file an 19 amended complaint. (ECF No. 7.) On August 12, 2020, plaintiff filed objections to the August 4, 20 2020 order. (ECF No. 11.) However, on August 27, 2020, plaintiff filed an amended complaint. 21 (ECF No. 12.) 22 The undersigned finds that by filing the amended complaint plaintiff has, in effect, 23 withdrawn his objections to the August 4, 2020 order. The undersigned herein screens the 24 amended complaint. Plaintiff may file objections to the instant order addressing the amended 25 complaint. 26 Plaintiff’s Allegations 27 All defendants are employed at High Desert State Prison (“HDSP”). Named as 28 defendants are Warden Spearman, K. Grether, S. Mey, C. Dore, M. Gonzalez, B. Sharp, 1 Correctional Officer Rendon, Correctional Officer Torres, Correctional Officer McDonald, 2 Correctional Sergeant Roderick, Supervising Cook Pusey, Assistant Food Manager Rentfrow- 3 Bunn and Correctional Sergeant Smith. 4 Plaintiff alleges that on or around April 2004, he was housed at California State Prison- 5 Sacramento (“CSP-Sac”). Plaintiff alleges that in April 2004, plaintiff contacted attorney Peter 6 Gold and informed him that CSP-Sac officials were retaliating against him for filing a lawsuit in 7 federal court by housing plaintiff on the most gang-active and violent facility, despite plaintiff’s 8 schizophrenia diagnosis. Plaintiff told Mr. Gold that prison officials falsely claimed that they 9 were investigating plaintiff’s safety concerns. Plaintiff alleges that Mr. Gold told him that the 10 only way to disprove the claim by CSP-Sac officials that they were investigating his safety 11 concerns would be for plaintiff to provide them with information to investigate. Based on this 12 advice, plaintiff wrote a 9-pages long letter (“2004 letter”) containing “fictional scenarios” which 13 the “ineptest investigator” could disprove. The 2004 letter falsely claimed that plaintiff was a 14 gang member, a federal informant, a participant in the federal witness protection program, and 15 other “outlandish” things. Plaintiff alleges that California Department of Corrections and 16 Rehabilitation (“CDCR”) could have easily disproved everything in the 2004 letter. Plaintiff 17 alleges that instead CSP-Sac staff accepted the 2004 letter as true and placed plaintiff in 18 protective custody based on the contents of the 2004 letter. 19 Plaintiff alleges that on or around April 18, 2018, while housed at California State Prison- 20 Corcoran (“Corcoran”), he mailed a letter to the CDCR Ombudsman alleging that Corcoran 21 officials had enlisted staff and inmates to “taint” plaintiff’s meals and to publicize the knowingly 22 false information contained in the 2004 letter. Plaintiff alleges that Corcoran officials took these 23 actions in retaliation for plaintiff filing two lawsuits against Corcoran prison officials. Plaintiff 24 alleges that if other inmates knew the contents of the 2004 letter, they would be motivated to 25 commit violence toward plaintiff. 26 Plaintiff alleges that after receiving plaintiff’s letter, the CDCR Ombudsman ordered 27 Corcoran officials to transfer plaintiff. Plaintiff was transferred to segregation while awaiting his 28 transfer. Plaintiff claims that while he was housed in segregation, he was housed with inmates 1 Ogg and Ortiz. 2 Plaintiff alleges that Corcoran officials entered into a scheme with defendant Spearman to 3 transfer plaintiff to HDSP so that an identical pattern of retaliation could continue. Plaintiff 4 alleges that inmates Ogg and Ortiz were transferred with plaintiff to HDSP on or around June 20, 5 2018. Plaintiff alleges that inmates Ogg and Ortiz were housed in the same building at HDSP as 6 plaintiff. Plaintiff alleges that inmates Ogg and Ortiz began publicizing the false information 7 regarding plaintiff contained in the 2004 letter. Plaintiff alleges that inmates Ogg and Ortiz also 8 distributed copies of the 2004 letter. Plaintiff also alleges that all defendants distributed the 2004 9 letter to other inmates in order to cause inmates to harm plaintiff. 10 Plaintiff alleges that upon his arrival at HDSP, defendants Grether and Sharp housed 11 plaintiff in a cell near inmates Ortiz and Pickett. Plaintiff alleges that the day after he arrived at 12 HDSP, inmate porters began flooding his cell with gallons of filthy wastewater. 13 Plaintiff alleges that defendants Pursey and Rentfrow-Brown provided meals to inmate 14 kitchen-workers to give to plaintiff. Plaintiff alleges that these meals were laced with a powerful 15 sedative, which plaintiff believes was Visine eyedrops. 16 Plaintiff alleges that on July 1, 2018, he submitted a grievance alleging that 1) defendants 17 Dore, Gonzalez, Rendon, Torres and McDonald were enlisting inmate porters to flood plaintiff’s 18 cell; 2) inmates Pickett, Ortiz and Ogg were publicizing the contents of the 2004 letter; and 19 3) defendants Rentfrow-Bunn and Pursey were enlisting inmate kitchen-workers to provide 20 plaintiff with meals laced with a powerful sedative. Plaintiff alleges that he did not receive a 21 response to this grievance. 22 Plaintiff alleges that on July 2, 2018, defendants Roderick and Mey demanded that 23 plaintiff give them the bag of coffee and donuts that plaintiff had brought to the dining hall. 24 Plaintiff told defendants that everybody walking down the path also had food that they had 25 brought to the dining hall. Defendant Mey responded, “Yeah, they can have theirs because they 26 are not like you, who snivels and files grievances and lawsuits against staff.” Defendants 27 Roderick and Mey began eating plaintiff’s donuts and telling plaintiff how much they would 28 enjoy drinking his coffee. Plaintiff told defendants that prison regulations stated that plaintiff was 1 entitled to send his contraband food home and that defendants were violating state law by eating 2 his food. Defendants told plaintiff to file a grievance. 3 Plaintiff told defendants Sharp and Smith about the confiscation of his donuts and coffee 4 by defendants Roderick and Mey. Defendant Sharp laughed and stepped outside of the office. 5 Defendant Smith told plaintiff that he would see what defendants Roderick and Mey had to say 6 for themselves. 7 Later that night, plaintiff filed a grievance about the confiscation of his donuts and coffee 8 by defendants Roderick and Mey. Plaintiff also complained that defendants Sharp and Smith had 9 ignored his complaints. Plaintiff received no response to this grievance. 10 On July 5, 2018, defendant Mey went “out of bounds” from his assigned post and came to 11 plaintiff’s cell. Defendant Mey asked the Gun Tower Control Officer, Correctional Officer 12 Aleman, to open plaintiff’s cell. Defendant Mey ordered plaintiff to come to the officer’s podium 13 fifteen feet away from plaintiff’s cell. Plaintiff alleges that defendants Mey and Gonzalez asked 14 plaintiff to give them his ADA vest. Plaintiff handed the vest to defendant Mey. After giving 15 defendant Mey the vest, plaintiff remembered that he left his hearing aids and enema hose inside 16 the pocket of the vest. Plaintiff reached toward defendant Mey and told him that he had left these 17 appliances in the vest. 18 Defendant Mey shouted, “So what are you going to just snatch it the fuck out of my 19 hands,” and pepper sprayed plaintiff. Defendant Mey then charged at plaintiff and struck plaintiff 20 in the back. 21 After defendant Mey struck plaintiff in the back, defendants Dore and Gonzales told 22 plaintiff to get on the floor. Plaintiff complied with this order. Defendant Dore told plaintiff that 23 defendant Mey had come to plaintiff’s cell to exchange plaintiff’s ADA vest because when he 24 took plaintiff’s food, defendant Mey noticed that plaintiff had a pocket sewn into the vest, which 25 was not permitted. Plaintiff alleges that defendant Mey stood over plaintiff and said, “Write this 26 up too motherfucker! Here’s something for you to run and tell the sergeant and anybody else you 27 want to. I told you, nobody gives a fuck!” 28 //// 1 Plaintiff alleges that while he was held in the office following the assault by defendant 2 Mey, defendants Dore, Gonzalez, Mey, Grether, Smith, Roderick and Sharp met with an Officers 3 Union Representative and cooked up a scheme to charge plaintiff with assault of defendant Mey. 4 Plaintiff was placed in punitive segregation based on these charges. 5 On July 12, 2018, defendant Spearman chaired plaintiff’s initial segregation unit screening 6 committee. Plaintiff alleges that defendant Spearman and the members of the committee watched 7 a video of the incident involving defendant Mey. Plaintiff alleges that the committee found that 8 the version of events put forth by defendants Mey, Grether, Dore, Gonzalez, Smith, Sharp and 9 Roderick was unsupported. Plaintiff was released from segregation. 10 Plaintiff alleges that during the July 12, 2018 hearing, he told defendant Spearman that 11 defendants Dore, Torres, Gonzalez, Rendon and McDonald had enlisted inmate porters to 12 threaten and intimidate him. Plaintiff allegedly told defendant Spearman that inmates Ortiz, Ogg 13 and Pickett were passing around copies of the 2004 letter. Plaintiff alleges that he told defendant 14 Spearman that defendants Pusey and Rentfrow-Bunn were tainting his food. Plaintiff alleges that 15 he told the committee that he had sent several grievances and request for interview forms 16 regarding these matters. Defendant Spearman allegedly told plaintiff that “they” had received the 17 letter plaintiff wrote to defendant Spearman detailing defendant Mey’s battery on plaintiff. 18 Defendant Spearman also denied plaintiff’s request to be transferred to a different prison. 19 Plaintiff alleges that after his release from segregation, more than ten inmates and staff 20 members told plaintiff that defendant Mey had been separated from service during plaintiff’s 21 segregation. Plaintiff was informed that defendant Mey had used excessive force against no less 22 than ten inmates over the past three years and against at least five inmates over the past eighteen 23 months. Plaintiff alleges that defendants Spearman, Grether, Sharp, Smith and Roderick knew 24 about these incidents of excessive force but had failed to take any corrective action. 25 Plaintiff alleges that after his release from segregation, defendant Grether told plaintiff 26 that he was recommending that plaintiff be transferred to Salinas Valley State Prison (“SVSP”) 27 because he was a problem inmate. Plaintiff told defendant Grether that he did not want to go to 28 SVSP because it had a higher level of custody. Defendant Grether told plaintiff that he was 1 getting rid of his “complaining ass.” 2 On or around September 12, 2018, plaintiff was transferred to SVSP. 3 Plaintiff’s Legal Claims 4 Claim One 5 In claim one, plaintiff alleges that defendants Spearman, Grether, Roderick, Sharp and 6 Smith violated his Eighth Amendment rights by failing to take corrective action against defendant 7 Mey based on defendant Mey’s history of assaulting other inmates. Plaintiff alleges that the 8 failure of these defendants to take corrective action led to the assault by defendant Mey on July 5, 9 2018. These allegations state a potentially colorable Eighth Amendment claim against defendants 10 Spearman, Grether, Roderick Sharp and Smith. 11 Claim Two 12 In claim two, plaintiff alleges that all defendants retaliated against him for filing 13 grievances. 14 A retaliation claim has five elements. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 15 2012). First, a plaintiff must allege that he engaged in protected activity. Id. For example, filing 16 an inmate grievance is protected. Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005). 17 Second, the plaintiff must show that the defendant took adverse action against him. 18 Watison, 668 F.3d at 1114 (citation omitted). “Third, the plaintiff must allege a causal 19 connection between the adverse action and the protected conduct.” Id. In other words, the 20 plaintiff must claim the defendant subjected him to an adverse action because of his engagement 21 in protected activity. Rhodes, 408 F.3d at 567. 22 “Fourth, the plaintiff must allege that the official’s acts would chill or silence a person of 23 ordinary firmness from future [protected] activities.” Watison, 668 F.3d at 1114 (internal 24 quotation marks and citation omitted). “Fifth, the plaintiff must allege ‘that the prison 25 authorities’ retaliatory action did not advance legitimate goals of the correctional institution...’” 26 Id. (quoting Rizzo v. Dawson, 778 F.2d 527, 532 (1985).) 27 As in the original complaint, plaintiff alleges that defendants Mey and Roderick retaliated 28 against him for filing grievances when they selectively enforced a rule that inmates are not 1 allowed to bring food into the dining room. This claim does not state a potentially colorable 2 retaliation claim because defendants’ enforcement of the rule, even if selectively enforced, 3 advanced the legitimate goal of the correctional institution, i.e., enforcement of valid rules and 4 regulations. Accordingly, the undersigned recommends that this retaliation claim be dismissed. 5 Plaintiff also alleges that defendants Mey and Roderick retaliated against him for filing 6 grievances when they failed to follow the rules regarding contraband disposal, i.e., they ate 7 plaintiff’s contraband donuts and planned to drink his contraband coffee rather than allowing 8 plaintiff to send the contraband home. These allegations state a potentially colorable retaliation 9 claim. 10 Plaintiff alleges that defendant Mey assaulted him in retaliation for filing grievances and 11 for telling defendant Smith that defendants Mey and Roderick had wrongly confiscated his coffee 12 and donuts. These allegations state a potentially colorable retaliation claim. 13 Plaintiff alleges that defendant Grether transferred him to SVSP in retaliation for plaintiff 14 filing grievances. These allegations state a potentially colorable retaliation claim. 15 Plaintiff alleges that every other action taken by defendants against him alleged in the 16 amended complaint was motivated by retaliation. However, plaintiff has not alleged sufficient 17 facts in support of these retaliation claims. Plaintiff’s conclusory allegations that all defendants 18 were motivated by retaliation are not sufficient to state potentially colorable retaliation claims. 19 See Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) 20 (conclusory and vague allegations do not support a cause of action.) Accordingly, the 21 undersigned recommends that plaintiff’s remaining retaliation claims be dismissed. 22 Claim Three 23 In claim three, plaintiff alleges that defendants violated his right to due process as detailed 24 in paragraphs 65-72 of the amended complaint. Paragraphs 65-72 of the amended complaint 25 include plaintiff’s retaliation claim. Although not entirely clear, it appears that plaintiff is 26 claiming that defendants violated his right to due process by failing to process his grievances. 27 Prisoners do not have “a separate constitutional entitlement to a specific prison grievance 28 procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 1 F.2d 639, 640 (9th Cir. 1988)). Prison officials are not required under federal law to process 2 inmate grievances in any specific way. Plaintiff’s claim that defendants failed to process his 3 grievances does not state a potentially colorable due process claim because there is no right to a 4 particular grievance process or response. See, e.g., Towner v. Knowles, 2009 WL 4281999, at *2 5 (E.D. Cal. Nov. 20, 2009) (plaintiff failed to state claims that would indicate a deprivation of his 6 federal rights after defendant allegedly screened out his inmate appeals without any basis); 7 Williams v. Cate, 2009 WL 3789597, at *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no protected 8 liberty interest in the vindication of his administrative claims.”). 9 Accordingly, the undersigned recommends dismissal of plaintiff’s due process claim. 10 Claim Four 11 In claim four, plaintiff alleges that all defendants violated his right to access the courts. 12 Plaintiff alleges that all defendants were motivated to dissuade him from exercising his First 13 Amendment right to petition the government for redress of grievances. Plaintiff alleges that 14 defendants interfered with his efforts to exhaust administrative remedies, which is the “gate-way 15 to the courts.” 16 Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 17 518 U.S. 343, 346 (1996). However, in order to state a claim for the denial of court access, a 18 prisoner must establish that he suffered an actual injury. Id. at 349. “[A]ctual injury [is] actual 19 prejudice with respect to contemplated or existing litigation, such as the ability to meet a filing 20 deadline or to present a claim.” Id. at 348. 21 In the instant case, plaintiff has not adequately alleged that he suffered any actual injury 22 with respect to contemplated or existing litigation. Plaintiff does not allege that defendants’ 23 alleged failure to respond to his grievances actually prevented him from pursuing a civil rights 24 claim regarding the conditions of his confinement. The undersigned also observes that although 25 prisoners are required to exhaust their administrative remedies prior to bringing suit pursuant to 26 42 U.S.C. § 1997e(a), such exhaustion may be excused where administrative procedures were 27 effectively unavailable, prison officials obstructed attempts to exhaust, or the plaintiff was 28 prevented from exhausting because procedures for processing grievances were not followed. See 1 Sapp v. Kimbrell, 623 F.3d 813, 822-24 (9th Cir. 2010). 2 Because plaintiff has failed to allege an actual injury, the undersigned recommends 3 dismissal of his claim alleging violation of his right to access the courts. 4 Claim Five 5 In claim five, plaintiff alleges that all defendants violated California Government Code 6 sections 52 and 52.1. By alleging violations of California Government Code sections 52 and 7 52.1, plaintiff is alleging violation of the Bane Act. 8 “The essence of a Bane Act claim is that the defendant, by the specified improper means 9 (i.e., threats, intimidation or coercion), tried to or did prevent the plaintiff from doing something 10 he or she had the right to do under the law or to force the plaintiff to do something that he or she 11 was not required to do under the law.” Simmons v. Superior Court, 7 Cal. App. 5th 1113, 1125 12 (2016) (internal citations and quotations omitted). Key to a claim under the Bane act is an 13 allegation that the defendant used threats, intimidation, or coercion. Shoyoye v. Cty. of Los 14 Angeles, 203 Cal. App. 4th 947, 959 (2012) (“It is the element of threat, intimidation, or coercion 15 that is being emphasized in Civil Code § 52.1”). 16 Plaintiff alleges that, “by their conduct, as alleged in this complaint, defendants and each 17 of them made threats, intimidated, coerced and caused serious physical injury and mental pain to 18 plaintiff as their reprisals against his exercise of rights, privileges and immunities protected by the 19 Constitution of the State of California…” 20 The undersigned finds that plaintiff’s claim that defendants Mey and Roderick failed to 21 properly process his contraband in retaliation for plaintiff’s filing of grievances states a 22 potentially colorable Bane Act claim. The undersigned also finds that plaintiff’s claims that 23 defendant Mey assaulted him in retaliation for filing grievances and that defendant Grether 24 ordered his transfer to SVSP in retaliation for filing grievances state potentially colorable Bane 25 Act claims. See Lipsey v. Goree, 2018 WL 4638309, at *4 (E.D. Cal. Sept. 25, 2018) (finding 26 that allegations that defendants engaged in retaliatory behavior against plaintiff because of his 27 propensity to file inmate grievances are sufficient to state a Bane Act claim) (citing Lopez v. 28 Cate, 2013 WL 239097, at *11 (E.D. Cal. Jan. 22, 2013) (concluding a cognizable Bane Act 1 claim was stated against defendants where a cognizable First Amendment retaliation claim was 2 also stated against them). 3 Plaintiff does not allege that any other defendants threatened, intimated or coerced him in 4 an attempt to prevent plaintiff from doing something that he had a right to do or to force him to 5 do something that he was not required to do by law. Accordingly, the undersigned recommends 6 that plaintiff’s remaining Bane Act claims be dismissed. 7 Claim Six 8 In claim six, plaintiff alleges that all defendants violated his Eighth Amendment rights by 9 subjecting him to cruel and unusual prison conditions. Plaintiff does not identify the conduct of 10 each defendant that allegedly violated his Eighth Amendment rights. Nevertheless, the 11 undersigned discusses plaintiff’s relevant allegations herein. 12 First, plaintiff alleges that Corcoran officials entered into a scheme with defendant 13 Spearman to have plaintiff transferred to HDSP so that HDSP could engage in the same pattern of 14 retaliation that HDSP officials had engaged in. Other than this conclusory allegation, plaintiff 15 alleges no facts supporting his claim that defendant Spearman conspired with Corcoran officials 16 to have plaintiff transferred to HDSP in order to continue the alleged retaliation. Plaintiff’s 17 conclusory allegations against defendant Spearman do not state a potentially colorable Eighth 18 Amendment claim. See Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 19 (9th Cir. 1982) (conclusory and vague allegations do not support a cause of action). Accordingly, 20 the undersigned recommends that this claim be dismissed. 21 Plaintiff alleges that upon his transfer to HDSP, all defendants distributed the 2004 letter 22 to other inmates in order to cause plaintiff harm. Plaintiff alleges no other facts in support of this 23 claim. The undersigned finds that these vague and conclusory allegations do not state a 24 potentially colorable Eighth Amendment claim. See Ivey v. Board of Regents of the University 25 of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (conclusory and vague allegations do not support a 26 cause of action). Accordingly, the undersigned recommends that this claim be dismissed. 27 Plaintiff alleges that defendants Pursey and Rentfrow-Bunn provided inmate kitchen 28 workers with meals for plaintiff that were laced with a powerful sedative, which plaintiff 1 identifies as Visine eyedrops. Plaintiff alleges no other facts in support of this claim. The 2 undersigned finds that plaintiff’s conclusory allegations against defendants Pursey and Rentfrow- 3 Bunn do not state potentially colorable Eighth Amendment claims. See Ivey v. Board of Regents 4 of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (conclusory and vague allegations 5 do not support a cause of action). Accordingly, the undersigned recommends that these claims be 6 dismissed. 7 Plaintiff alleges that defendant Mey used excessive force when he allegedly assaulted 8 plaintiff on or around July 5, 2018. These allegations state a potentially colorable Eighth 9 Amendment claim. 10 Plaintiff alleges that defendants Dore, Gonzalez, Grether, Smith, Roderick and Sharp 11 attempted to cover-up defendant Mey’s alleged excessive force by filing false reports regarding 12 what occurred. These allegations do not rise to the level of an Eighth Amendment claim because 13 the filing of false reports did not cause the alleged assault. See Ragsdale v. Flores, 2015 WL 14 6164908, at *6 (C.D. Cal. 2015) (finding that defendant officer who allegedly participated in a 15 cover up by filing a false report about the alleged assault did not violate the Eighth Amendment 16 because “[p]reparing a false report about an incident after it occurred cannot subject that 17 individual to liability for the force used during the incident.”) Accordingly, plaintiff has not 18 stated potentially colorable Eighth Amendment claims against defendants Dore, Gonzalez, 19 Grether, Smith, Roderick and Sharp. 20 Claim Seven 21 In claim seven, plaintiff alleges that defendants violated California Government Code 22 § 3294. Section 3294 of the California Government Code provides that a party may obtain 23 punitive damages by showing clear and convincing evidence that the defendant acted with malice, 24 fraud or oppression. 25 Plaintiff may proceed with his claim for punitive damages against defendants Mey, 26 Roderick and Grether, against whom he has stated potentially colorable claims pursuant to the 27 Bane Act. Plaintiff’s request to seek punitive damages against the other defendants, against 28 whom he has not stated potentially colorable state law claims, should be denied. 1 Conclusion 2 The undersigned finds that the amended complaint states the following potentially 3 colorable claims: 1) defendants Spearman, Grether, Roderick, Sharp and Smith violated the 4 Eighth Amendment by failing to take corrective action against defendant Mey; 2) defendants Mey 5 and Roderick retaliated against plaintiff for filing grievances by failing to properly dispose of 6 plaintiff’s contraband coffee and donuts; 3) defendant Mey assaulted plaintiff in retaliation for 7 filing grievances and reporting the alleged assault; 4) defendant Grether transferred plaintiff to 8 SVSP in retaliation for plaintiff filing grievances; 5) defendants Mey, Roderick and Grether 9 violated the Bane Act by committing the allegedly retaliatory conduct; 6) defendant Mey violated 10 the Eighth Amendment by assaulting plaintiff. The undersigned also finds that plaintiff may 11 proceed with his claim for punitive damages pursuant to California Government Code § 3294 12 against defendants Mey, Roderick and Grether. 13 Plaintiff has had one opportunity to amend his complaint. The undersigned has spent 14 considerable time evaluating the original and amended complaints. It is unlikely that plaintiff can 15 cure the pleading defects discussed above. For these reasons, the undersigned herein 16 recommends dismissal of those claims found not colorable above. The undersigned separately 17 orders service of those claims found colorable. 18 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall assign a district 19 judge to this action; and 20 IT IS HEREBY RECOMMENDED that all claims in the amended complaint, but for 21 those found potentially colorable above, be dismissed. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, plaintiff may file written objections 25 with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 27 //// 28 //// □□□ COUN TET TEIN RAMU UPEPOTEL tor PON AE EN AY tl I A 1 | failure to file objections within the specified time may waive the right to appeal the District 2 | Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: October 1, 2020 ‘ Frese Arn 5 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 6 7 Lam1474.56 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13