(PC) Gonzalez v. Anderson ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 GEORGE GONZALEZ, 1:19-cv-01421-GSA-PC 9 Plaintiff, ORDER DIRECTING CLERK TO RANDOMLY ASSIGN A UNITED STATES 10 v. DISTRICT JUDGE TO THIS CASE 11 ANDERSON, et al., AND 12 Defendants. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE 13 PROCEED AGAINST DEFENDANTS ANDERSON AND MCGRAW FOR 14 RETALIATION UNDER THE FIRST AMENDMENT AND VIOLATION OF THE 15 ADA; AND THAT ALL OTHER CLAIMS BE DISMISSED FOR FAILURE TO STATE A 16 CLAIM UNDER § 1983 17 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 18 19 I. BACKGROUND 20 George Gonzalez (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 21 with this civil rights action pursuant to 42 U.S.C. § 1983. On October 9, 2019, Plaintiff filed the 22 Complaint commencing this action. (ECF No. 1.) On September 15, 2020, the court dismissed 23 the Complaint for failure to state a claim, with leave to amend. (ECF No. 7.) On October 15, 24 2020, Plaintiff filed the First Amended Complain, which is now before the court for screening. 25 (ECF No. 8.) 28 U.S.C. § 1915. 26 II. SCREENING REQUIREMENT 27 The court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 1 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 2 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 3 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 4 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 5 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 6 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 7 A complaint is required to contain “a short and plain statement of the claim showing that 8 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 9 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 11 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 12 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 13 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 14 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 15 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 16 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 17 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 18 plausibility standard. Id. 19 III. SUMMARY OF FIRST AMENDED COMPLAINT 20 Plaintiff is presently incarcerated at Valley State Prison in Coalinga, California, in the 21 custody of the California Department of Corrections and Rehabilitation (CDCR), where the 22 events at issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants 23 Correctional Officer (C/O) A. Anderson and C/O K. McGraw (collectively, “Defendants”). 24 Plaintiff proceeds against Defendants in their individual and official capacities. 25 A summary of Plaintiff’s allegations follows: 26 In January 2019, Plaintiff was assigned by prison officials to an educational program 27 located within the prison, but only accessible through a Work Change area staffed by two 28 correctional officers. The prison’s local Operational Procedure 10246 requires that inmates pass 1 through the Work Change area and through a metal detector before going to their assigned 2 educational programs. Operational Procedure 10246 states: “The aforementioned Work Change 3 procedures shall be adhered to for all inmates being processed through Work Change with the 4 exception of inmates who have a disability that prevents the employment of standard search 5 methods.” (First Amended Complaint, ECF No. 8 at 3 ¶ 10.) These methods include the use of 6 a hand-held metal detecting wand also known as a “Garret” device. (Id.) 7 On January 14, 2019, Plaintiff attempted to access his educational program through the 8 Work Change area and advised the two officers working there, defendants A. Anderson and K. 9 McGraw, that he could not walk through the metal detector unaided by his walker. “I need my 10 walker. I cannot walk through the machine without it.” (Id. ¶ 11.) C/O McGraw stated, “If you 11 don’t get through the metal detector, you ain’t going through.” (Id. ¶ 12.) Plaintiff responded, 12 “You have a hand-held detector you use for wheelchair inmates you can use.” (Id.) K. McGraw 13 repeated, “If you don’t get through the metal detector, you ain’t going through.” (Id.) C/O A. 14 Anderson then stated, “Go back to your housing unit, you ain’t getting through here.” (Id.) 15 Defendants Anderson and McGraw denied Plaintiff equal access to his educational 16 program because of his disability. Defendants did not seek to use any alternative methods to 17 clear Plaintiff through the Work Change area, including the use of the hand-held metal detecting 18 wand suggested by Plaintiff. For approximately the next 11 days the same scenario took place 19 and Plaintiff was denied equal access to his educational program because of his disability. 20 On February 9, 2019, Plaintiff received a CDCR 115 Rules Violation Report from his 21 educational instructor citing a violation of CCR Title 15 § 3104(a) – Absent from Work 22 Assignment. The report stated that Plaintiff had missed a total of 31.5 hours from the program 23 “or approximately 11 days.” (RVR #06466466.) (Id. at 4 ¶ 15.) 24 On February 11, 2019, Plaintiff filed a CDCR 1824 Reasonable Accommodation Request 25 form seeking “Equal Access to Educational Program, Medical Ducats, and General Access 26 through the Work Change area.” (Id. at 4 ¶ 16.) Plaintiff also advised that the prison’s 27 Operational Procedure 10246 provides for inmates who cannot comply with the regular 28 procedure for processing through the Work Exchange area because of their disabilities, and that 1 the Work Change officers have refused to use the hand-held wand and continue to deny him 2 equal access to programs. 3 On February 18, 2019, Plaintiff filed a CDCR 602 Appeal form in which he challenged 4 the Rules Violation Report he received for missing 31.5 hours of his educational program, 5 explaining that the Work Change officers had refused him access to his educational program 6 because of his disabilities. (CDCR 1824 #VSP-C-19-00284.) 7 On February 28, 2019, Plaintiff filed a CDCR 602 Appeal form (VSP-C-19-00335) in 8 which he challenged the RVR he received for missing 31.5 hours of his educational assignment, 9 explaining that the Work Change Officers had refused him access to his assignment because of 10 his disability. The appeal was denied through the Director’s Level. 11 On March 6, 2019, Plaintiff filed another CDCR 602 Appeal form (VSP-C-19-00489) 12 after Defendants A. Anderson and K. McGraw began retaliating against Plaintiff by requiring 13 him to strip out in the Work Change area before going to his educational assignment. Inmates 14 may be required to be strip-searched upon returning from their work or educational/vocational 15 assignments to control contraband from entering the facility yards from areas “behind the wall.” 16 (Id. at 4 ¶ 18.) Defendants Anderson and K. McGraw stated, “You ain’t tellin’ us how to do our 17 fu**in’ jobs, if you ain’t gonna clear the metal detector, you’re gonna strip out both ways 18 through!” (Id. at 4-5 ¶ 18.) Defendants could and should have, per policy, used the hand-held 19 metal detector, but they elected to treat Plaintiff differently than other similarly-situated inmates. 20 This was clearly done in bad faith and as retaliation for filing the Reasonable Accommodation 21 Request that cited their previous actions. This was done in an attempt to chill Plaintiff’s protected 22 First Amendment activity to redress the government with grievances. Plaintiff was subsequently 23 moved from C-Facility to B-Facility where there have been no issues with being processed 24 through the Work Change area. Plaintiff alleges that Defendants, acting in concert, knowingly 25 deprived Plaintiff of his rights under the Constitution of the United States by discrimination, 26 deliberate indifference, violation of the Equal Protection Clause of the Fourteenth Amendment, 27 violation of Plaintiff’s protected First Amendment right to file grievances with prison officials 28 /// 1 without fear of retaliation, and ADA Title II violations, without regard to Plaintiff’s federally 2 protected rights. 3 As relief, Plaintiff seeks monetary damages. 4 IV. PLAINTIFF’S CLAIMS 5 A. Americans with Disabilities Act (ADA) Claim 6 Title II of the ADA, 42 U.S.C. § 12131 et seq., and § 504 of the Rehabilitation Act, as 7 amended and codified in 29 U.S.C. § 701 et seq. (“RA”), prohibit discrimination on the basis of 8 a disability in the programs, services or activities of a public entity. Federal regulations require 9 a public entity to “make reasonable modifications in policies, practices, or procedures when the 10 modifications are necessary to avoid discrimination on the basis of disability, unless the public 11 entity can demonstrate that making the modifications would fundamentally alter the nature of the 12 service, program, or activity.” 28 C.F.R. § 35.130(b)(7). 13 The elements of a cause of action under Title II of the ADA are: (1) the plaintiff is an 14 individual with a disability;1 (2) the plaintiff is otherwise qualified to participate in or receive the 15 benefit of some public entity’s services, programs, or activities; (3) the plaintiff was either 16 excluded from participation in or denied the benefits of the public entity’s services, programs or 17 activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, 18 denial of benefits, or discrimination was by reason of the plaintiff’s disability. Thompson v. 19 Davis, 295 F.3d 890, 895 (9th Cir. 2002). A cause of action under § 504 of the RA essentially 20 parallels an ADA cause of action. See Olmstead v. Zimring, 527 U.S. 581, 590 (1999); Duvall v. 21 County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). 22 The proper defendant in an ADA action is the public entity responsible for the alleged 23 discrimination. U.S. v. Georgia, 546 U.S. 151, 153 (2006). State correctional facilities are 24 “public entities” within the meaning of the ADA. See 42 U.S.C. § 12131(1)(A) & (B); 25 Pennsylvania Dept. of Corrs. v. Yeskey, 524 U.S. 1206, 210 (1998); Armstrong v. Wilson, 124 26 27 1 A “disability” under the ADA includes (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such 28 impairment; or (3) being regarded as having such impairment. Kula v. Malani, 539 F. Supp. 2d 1263 (D. Haw. 2008). 1 F.3d 1019, 1025 (9th Cir. 1997). However, a state official sued in his official capacity is, in 2 effect, a suit against the government entity and is an appropriate defendant in an ADA action. 3 See Applegate v. CCI, No. 1:16–cv–1343 MJS (PC), 2016 WL 7491635, at *5 (E.D. Cal. Dec. 4 29, 2016) (citing Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187–88 (9th Cir. 2003); Kentucky v. 5 Graham, 473 U.S. 159, 165 (1985)). 6 Ordinarily, a plaintiff is not entitled to monetary damages against defendants in their 7 official capacities. Aholelei v. Department of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) 8 (“The Eleventh Amendment bars suits for money damages in federal court against a state, its 9 agencies, and state officials in their official capacities.”). However, the Eleventh Amendment 10 does not bar ADA or RA suits against state officials in their official capacities for injunctive 11 relief or damages. See Phiffer v. Columbia River Corr. Inst., 384 F.3d 791, 792–93 (9th Cir. 12 2004). However, monetary damages are not available under Title II of the ADA absent a showing 13 of discriminatory intent. See Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998). 14 To show discriminatory intent, a plaintiff must establish deliberate indifference by the public 15 entity. Duvall, 260 F.3d at 1138. Deliberate indifference requires: (1) knowledge that a harm to 16 a federally protected right is substantially likely, and (2) a failure to act upon that likelihood. Id. 17 at 1139. The first prong is satisfied when the plaintiff identifies a specific, reasonable and 18 necessary accommodation that the entity has failed to provide, and the plaintiff notifies the public 19 entity of the need for accommodation or the need is obvious or required by statute or regulation. 20 Id. The second prong is satisfied by showing that the entity deliberately failed to fulfill its duty 21 to act in response to a request for accommodation. Id. at 1139-40. Punitive damages may not be 22 awarded in suits brought under Title II of the ADA. Barnes v. Gorman, 536 U.S.181, 189 (2002). 23 The court finds that Plaintiff states cognizable ADA claims against Defendants C/O 24 Anderson and C/O McGraw in their official capacities. 25 B. Civil Rights Act -- 42 U.S.C. § 1983 26 The Civil Rights Act under which this action was filed provides: 27 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 28 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 1 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 2 3 42 U.S.C. § 1983. 4 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 5 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 6 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 7 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 8 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 9 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law 10 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the 11 federal Constitution, Section 1983 offers no redress.” Id. 12 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 13 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution 14 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 15 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 16 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 17 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 18 which he is legally required to do that causes the deprivation of which complaint is made.’” 19 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 20 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 21 established when an official sets in motion a ‘series of acts by others which the actor knows or 22 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 23 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 24 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 25 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 26 1026 (9th Cir. 2008). 27 /// 28 /// 1 1. Prison’s Operational Procedure 10246– State Law Claim 2 Plaintiff claims that that Defendants failed to comply with the prison’s Operational 3 Procedure 10246. This is a state law claim. Violation of state tort law, state regulations, rules 4 and policies of the CDCR, or other state law is not sufficient to state a claim for relief under § 5 1983. Section 1983 does not provide a cause of action for violations of state law. See Galen v. 6 Cnty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007). To state a claim under § 1983, there 7 must be a deprivation of federal constitutional or statutory rights. See Paul v. Davis, 424 U.S. 8 693 (1976); also see Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995); Gonzaga 9 University v. Doe, 536 U.S. 273, 279 (2002). Although the court may exercise supplemental 10 jurisdiction over state law claims, Plaintiff must first have a cognizable claim for relief under 11 federal law. See 28 U.S.C. § 1367. Here, the court has found cognizable claims in the First 12 Amended Complaint. 13 Plaintiff is also advised that the Government Claims Act requires exhaustion of state law 14 claims with California’s Victim Compensation and Government Claims Board, and Plaintiff is 15 required to specifically allege compliance in his complaint. Shirk v. Vista Unified Sch. Dist., 42 16 Cal.4th 201, 208-09 (Cal. 2007); State v. Superior Court of Kings Cnty. (Bodde), 32 Cal.4th 17 1234, 1239 (Cal. 2004); Mabe v. San Bernardino Cnty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 18 1111 (9th Cir. 2001); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 19 1995); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). Plaintiff 20 has not done so. Therefore, Plaintiff’s state law claim fails. 21 2. Retaliation 22 “Prisoners have a First Amendment right to file grievances against prison officials and to 23 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 24 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a 25 viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a 26 state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected 27 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 28 (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 1 408 F.3d 559, 567-68 (9th Cir. 2005). To state a cognizable retaliation claim, Plaintiff must 2 establish a nexus between the retaliatory act and the protected activity. Grenning v. Klemme, 34 3 F.Supp.3d 1144, 1153 (E.D. Wash. 2014). 4 The court finds that Plaintiff states cognizable claims for retaliation against Defendants 5 Anderson and McGraw. 6 3. Equal Protection – Fourteenth Amendment 7 The Equal Protection Clause requires that persons who are similarly situated be treated 8 alike. City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249 9 (1985); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be 10 established by showing that Defendants intentionally discriminated against Plaintiff based on his 11 membership in a protected class, Comm. Concerning Cmty. Improvement v. City of Modesto, 12 583 F.3d 690, 702-03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071,1082 (9th Cir. 2003), 13 Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated 14 individuals were intentionally treated differently without a rational relationship to a legitimate 15 state purpose, Engquist v. Oregon Department of Agr., 553 U.S. 591, 601-02, 128 S.Ct. 2146 16 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073 (2000); Lazy Y 17 Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 18 526 F.3d 478, 486 (9th Cir. 2008). 19 “‘[T]he disabled do not constitute a suspect class’ for equal protection purposes.” Lee, 20 250 F.3d at 687 (quoting Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996)). In addition, 21 “neither prisoners nor ‘persons convicted of crimes’ constitute a suspect class for 22 equal protection purposes.” United States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 23 2011); Glauner v. Miller, 184 F.3d 1053, 1054 (9th Cir. 1999) (“[P]risoners are not a 24 suspect class....”); McQueary v. Blodgett, 924 F.2d 829, 834-35 (9th Cir. 1991) (“Inmates are 25 not entitled to identical treatment as other inmates merely because they are all inmates.”). Here, 26 plaintiff fails to identify any other similarly-situated prisoners, and includes no allegations 27 demonstrating that he was similarly situated to other prisoners who received preferential 28 treatment. 1 Equal protection claims may be brought by a “class of one.” See Village of Willowbrook, 2 528 U.S. at 564; Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000); Barren 3 v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); Federal Deposit Ins. Corp. v. Henderson, 4 940 F.2d 465, 471 (9th Cir. 1991); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). 5 However, to succeed on a class-of-one theory, the plaintiff must establish that (1) the defendants 6 intentionally treated him differently than similarly situated individuals and (2) there is no rational 7 basis for the difference in treatment. Willowbrook, 528 U.S. at 564; North Pacifica LLC, 526 8 F.3d at 486. Plaintiff has not done so. 9 Plaintiff fails to state a claim for violation of his rights to equal protection because he has 10 not shown that he was treated differently than other similarly situated individuals without a 11 rational relationship to a legitimate state purpose. 12 4. Conspiracy 13 Conspiracy under § 1983 requires proof of “an agreement or meeting of the minds to 14 violate constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (internal 15 quotation marks omitted) (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 16 1539, 1540-41 (9th Cir. 1989)), and that an “‘actual deprivation of his constitutional rights 17 resulted from the alleged conspiracy,’” Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) 18 (quoting Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989) ). “‘To be liable, 19 each participant in the conspiracy need not know the exact details of the plan, but each participant 20 must at least share the common objective of the conspiracy.’” Franklin, 312 F.3d at 441 (quoting 21 United Steelworkers, 865 F.2d at 1541). A plaintiff must allege facts with sufficient particularity 22 to show an agreement or a meeting of the minds to violate the plaintiff’s constitutional rights. 23 Miller v. Cal. Dep’t of Soc. Servs., 355 F.3d 1172, 1177 n.3 (9th Cir. 2004) (citing Woodrum, 24 866 F.2d at 1126). The mere statement that defendants “conspired” or acted “in retaliation” is 25 not sufficient to state a claim. “Threadbare recitals of the elements of a cause of action, supported 26 by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 27 U.S. at 555). 28 /// 1 The Ninth Circuit requires a plaintiff alleging a conspiracy to violate civil rights to “state 2 specific facts to support the existence of the claimed conspiracy.” Olsen v. Idaho State Bd. of 3 Med., 363 F.3d 916, 929 (9th Cir. 2004) (citation and internal quotation marks omitted) 4 (discussing conspiracy claim under § 1985); Burns v. County of King, 883 F.2d 819, 821 (9th 5 Cir. 1989) (“To state a claim for conspiracy to violate one’s constitutional rights under section 6 1983, the plaintiff must state specific facts to support the existence of the claimed conspiracy.” 7 (citation omitted)). 8 Plaintiff’s allegations of conspiracy under § 1983 fail to state a claim because his 9 allegations are conclusory and merely speculative. Although he uses the phrase “acted in 10 concert,” he does not provide any specific facts that show that Defendants had an agreement to 11 retaliate against him or otherwise violate his constitutional rights. There is absolutely no 12 indication of any agreement between any of the defendants. Therefore, Plaintiff fails to state a 13 claim for conspiracy. 14 V. CONCLUSION, ORDER, AND RECOMMENDATIONS 15 For the reasons set forth above, the court finds that Plaintiff states cognizable claims 16 against Defendants C/O Anderson and C/O McGraw for retaliation under the First Amendment 17 and violation of the ADA, but no other claims against either of the Defendants. 18 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give 19 leave to amend when justice so requires.” Here, the court is persuaded that Plaintiff is unable to 20 allege any additional facts, based upon the circumstances he challenges, that would state a 21 cognizable claim under § 1983. “A district court may deny leave to amend when amendment 22 would be futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013). The court finds that 23 the deficiencies in Plaintiff’s claims outlined above are not capable of being cured by 24 amendment, and therefore further leave to amend should not be granted. 28 U.S.C. § 25 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 26 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign a 27 United States District Judge to this case, 28 and 1 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 2 1. Plaintiff proceed in this case with his cognizable claims against Defendants C/O 3 Anderson and C/O McGraw for retaliation in violation of the First Amendment 4 and violation of the ADA; 5 2. All other claims be dismissed from this case based on Plaintiff’s failure to state a 6 claim; 7 3. Plaintiff’s state law claims, claims for violation of his rights to equal protection, 8 and claims for conspiracy be dismissed from this case based on Plaintiff’s failure 9 to state a claim; 10 4. Plaintiff’s state law claims be dismissed without prejudice to bringing the claims 11 in state court; and 12 5. This case be referred back to the Magistrate Judge for further proceedings, 13 including initiation of service of process. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 16 (14) days after the date of service of these findings and recommendations, Plaintiff may file 17 written objections with the court. Such a document should be captioned “Objections to 18 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 19 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 20 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 21 (9th Cir. 1991)). 22 IT IS SO ORDERED. 23 24 Dated: October 19, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28