(PC) Bealer v. Kern Valley State Prison ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTWOINE BEALER, Case No. 1:18-cv-01170-DAD-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION 13 v. FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF 14 KERN VALLEY STATE PRISON CLASSIFICATION COMMITTEE, et al., (ECF No. 29) 15 Defendants. THIRTY (30) DAY DEADLINE 16 17 Plaintiff Antwoine Bealer is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. § 1983. 19 On May 14, 2018, Plaintiff filed his original complaint. (ECF No. 1.) On February 28, 20 2019, the Court screened Plaintiff’s complaint and found that Plaintiff had failed to state a 21 cognizable claim. (ECF No. 20.) Plaintiff was provided with the legal standards that applied to 22 his claims and granted leave to amend. (Id.) 23 On April 29, 2019, Plaintiff filed a first amended complaint. (ECF No. 23.) On August 24 14, 2019, the Court screened Plaintiff’s first amended complaint and again found that Plaintiff 25 had failed to state a cognizable claim. (ECF No. 24.) Plaintiff was again provided with the legal 26 standards that applied to his claims and granted leave to amend. (Id.) 27 Currently before the Court for screening is Plaintiff’s second amended complaint, filed on 28 September 30, 2019. (ECF No. 29.) 1 I. 2 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 on which relief may be granted,” or that 7 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 8 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 9 A complaint must contain “a short and plain statement of the claim showing that the 10 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 13 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 14 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 15 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 16 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 17 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 18 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 19 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 20 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 21 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 22 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 23 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d 24 at 969. 25 II. 26 SUMMARY OF COMPLAINT 27 The Court accepts Plaintiff’s allegations in the second amended complaint as true only for 28 the purpose of the sua sponte screening requirement under 28 U.S.C. § 1915. 1 Plaintiff names the Kern Valley State Prison Classification Committee, Kern Valley State 2 Prison Warden John Doe, CCI D. Patterson, CDW M. Sexton, and CCII M. Oliveira as 3 Defendants. 4 Plaintiff asserts that Defendant Patterson, K. Welch, Sergeant T. Romo, Defendant 5 Oliveira, and Defendant Sexton were part of the “Classification Committee that made the 6 decision that deprived Plaintiff of his constitutional rights.” (ECF No. 29, at 10.) However, 7 Plaintiff also states that he does not know each individuals’ involvement in the constitutional 8 violation, i.e., his retention in the SHU; he is only aware that the decision to retain him in the 9 SHU was made by the Classification Committee in Corcoran State Prison on October 8, 2015. 10 On March 24, 2015, Plaintiff was placed in the Administrative Segregation Unit (“ASU”) 11 at Kern Valley State Prison to serve an aggravated term of nine months for threatening a peace 12 officer. Plaintiff asserts that his placement in ASU violated his rights because he did not threaten 13 a peace officer and he was not given a fair opportunity to defendant against the allegations. 14 After he completed serving his 9-month term in ASU in October 2015, instead of being 15 released back to general population, Plaintiff was transferred to the Security Housing Unit 16 (“SHU”) at California State Prison, Corcoran. On October 8, 2015, the Classification Committee 17 elected to retain Plaintiff in the SHU for administrative purposes and only stated vague reasons 18 for the decision to retain Plaintiff. Plaintiff was not provided with a notice that he would be 19 retained in SHU or a written statement of the evidence behind the decision. Plaintiff asserts that, 20 in fact, there was no evidence to support the Classification Committee’s decision to assess 21 Plaintiff with an administrative SHU term because, in October 2015, Plaintiff had no previous 22 SHU terms or any substantial disciplinary history. Plaintiff was housed in administrative SHU 23 until July 2016. 24 Plaintiff asserts that administrative segregation and being housed in the SHU increases an 25 inmate’s placement score. Further, a placement score above 60 renders an inmate ineligible for 26 placement at a Level I, II, III, or minimum-security prison and significantly decreases success 27 with the parole board. Additionally, Plaintiff states that the time he was housed in the SHU 28 affected Plaintiff’s credits, which, in turn, increased the time that Plaintiff will have to spend in 1 prison. Plaintiff states that he was not presented with any charges to justify housing him in SHU 2 and the Classification Committee cannot provide any evidence of what Plaintiff has actually done 3 to justify housing him in SHU. Further, Plaintiff contends that there is no law or California state 4 regulation that justifies his placement and retention in SHU. Finally, Plaintiff alleges that he 5 suffered an atypical and significant hardship when he was housed in both ASU and SHU. 6 Plaintiff alleges that the Classification Committee used an outdated, unconstitutional, 7 bureaucratic method and did not follow the rules and regulations of Title 15 of the California 8 Code of Regulations when the Committee acted to deprive Plaintiff of his liberty. Specifically, 9 the Classification Committee did not take into consideration Plaintiff’s behavior, needs, interests, 10 or desires, but only considered Plaintiff’s placement score, which has no connection to his 11 behavior or programming in general population. Instead, Plaintiff’s placement score comes from 12 situations provoked and instigated by correctional officers, who made conscious decisions to 13 interfere with Plaintiff’s programming. Plaintiff asserts that his programming was devoid of any 14 strife or behavioral issues until correctional officers became involved in his programming and he 15 had to defend his rights. 16 Plaintiff further alleges that there was no emergency or legitimate penological interests 17 involved in the decisions made by correctional staff. Instead, the decisions made by correctional 18 staff had no professional basis and were purely personal. 19 On November 12, 2015, Plaintiff submitted a 602 administrative appeal concerning 20 placement in the SHU. On December 21, 2015, the 602 was returned to Plaintiff. 21 On January 13, 2016, Plaintiff resubmitted the 602 because what was written in the 22 response memorandum was not what was discussed by the interviewer, which denied Plaintiff his 23 due process rights. Further, Plaintiff alleged that, since the interview was conducted on 24 approximately December 17, 2015 and he did not receive the administrative appeal back until 25 January 8, 2016, the appeal was returned to Plaintiff almost thirty days overdue. 26 On January 14, 2016, the 602 was returned to Plaintiff with a response stating that the 27 appeal had been rejected because Plaintiff had changed the issue in the appeal. On January 19, 28 2016, Plaintiff resubmitted the appeal, stating that he would not “line through” his appeal and that 1 the issue had not changed. On January 25, 2016, the appeal was returned to Plaintiff with a 2 response stating that the appeal had been cancelled because Plaintiff failed to follow instructions. 3 On January 28, 2016, Plaintiff filed a second appeal challenging the cancellation of his 4 first appeal. The cancellation appeal bypassed the first level of review. Then, Plaintiff’s 5 cancellation appeal was denied at the second level of review with an unintelligible explanation of 6 timely delivery and a statement that Plaintiff failed to follow instructions. On March 9, 2016, 7 Plaintiff submitted his cancellation appeal to the third level of review, who denied it erroneously. 8 In relief, Plaintiff prays for nominal, compensatory, and punitive damages. 9 III. 10 DISCUSSION 11 A. Linkage Requirement 12 The Civil Rights Act under which this action was filed provides: 13 Every person who, under color of [state law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or 14 immunities secured by the Constitution ... shall be liable to the party injured in an 15 a ction at law, suit in equity, or other proper proceeding for redress. 16 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between 17 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 18 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 19 Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional 20 right, within the meaning of section 1983, if he does an affirmative act, participates in another’s 21 affirmative acts or omits to perform an act which he is legally required to do that causes the 22 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 23 Here, Plaintiff does not adequately link Defendant Kern Valley State Prison Warden John 24 Doe to any deprivation of his constitutional rights. While Defendant Warden John Doe is named 25 in the list of defendants on page 4 of Plaintiff’s second amended complaint, the second amended 26 complaint does not contain any factual allegations asserting what Defendant Warden John Doe 27 did, or did not do, that violated Plaintiff’s constitutional rights. Therefore, Plaintiff has failed to 28 1 allege any cognizable claim against Defendant Warden John Doe. Plaintiff was previously 2 advised of the linkage requirement in the Court’s prior orders screening Plaintiff’s first amended 3 complaint and provided an opportunity to amend. The Court concludes that further leave to 4 amend would be futile. 5 Supervisory Liability 6 To the extent that Plaintiff seeks to hold Defendant John Doe Warden liable based solely 7 upon the Warden’s supervisory roles, he may not do so. Liability may not be imposed on 8 supervisory personnel for the actions or omissions of their subordinates under the theory of 9 respondeat superior, or vicarious liability. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cnty., 10 Ariz., 609 F.3d 1011, 1020–21 (9th Cir.2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 11 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 12 Supervisors may be held liable only if they “participated in or directed the violations, or 13 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 14 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. 15 Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Supervisory liability may also exist without any 16 personal participation if the official implemented “a policy so deficient that the policy itself is a 17 repudiation of the constitutional rights and is the moving force of the constitutional violation.” 18 Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations 19 marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 20 In this case, Plaintiff’s complaint fails to allege facts demonstrating that Defendant John 21 Doe Warden participated in, or directed, any constitutional violations, knew of any constitutional 22 violations and failed to act to prevent them, or implemented a deficient policy that was the 23 moving force of Plaintiff’s constitutional violations. Therefore, the only basis for a claim against 24 Defendant John Doe Warden would be respondeat superior, which is prohibited under § 1983. 25 Plaintiff was previously advised of this deficiency in the Court’s prior order screening Plaintiff’s 26 first amended complaint and provided an opportunity to amend. The Court concludes that further 27 leave to amend would be futile. 28 / / / 1 B. Eleventh Amendment Immunity 2 The California Department of Corrections and Rehabilitation cannot be sued for damages 3 in federal court because it is a state agency and, therefore, is entitled to Eleventh Amendment 4 immunity. Brown v. Cal. Dep’t. of Corr., 554 F.3d 747, 752 (9th Cir. 2009) (holding that 5 California Department of Corrections was entitled to Eleventh Amendment immunity with 6 respect to claims brought pursuant to § 1983). Here, since Defendant Kern Valley State Prison 7 Classification Committee is a part of Kern Valley State Prison, which itself is a part of the 8 California Department of Corrections and Rehabilitation, Defendant Kern Valley State Prison 9 Classification Committee is immune from suit under the Eleventh Amendment. Herrera v. Pain 10 Mgmt. Comm. Staff at Corcoran State Prison, No. 1:12-cv-01828-MJS (PC), 2012 WL 6005379, 11 at *2 (E.D. Cal. Nov. 30, 2012) (stating that a plaintiff cannot seek relief against CDCR by 12 naming a prison committee as a defendant); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 13 1989); Garrison v. Nev. Dep’t of Corr., No. 3:17-cv-0091-MMD-WGC, 2018 WL 5793158, at * 14 3 (D. Nev. Nov. 5, 2018). Consequently, Plaintiff’s claims for damages against Defendant Kern 15 Valley State Prison Classification Committee must be dismissed. Plaintiff was previously 16 advised of this deficiency in the Court’s prior order screening Plaintiff’s first amended complaint 17 and provided an opportunity to amend. The Court concludes that further leave to amend would 18 be futile. 19 C. Fourteenth Amendment – Due Process 20 1. Administrative and/or Disciplinary Segregation 21 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations 22 of life, liberty, or property; and those who seek to invoke its procedural protection must establish 23 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). To plead a 24 procedural due process violation, a plaintiff must allege: (1) that the state interfered with a life, 25 liberty, or property interest; and (2) the procedures used to deprive such interest were 26 constitutionally insufficient. Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1990). 27 Liberty interests may be found in either the Due Process Clause of the Fourteenth Amendment or 28 in state law. Chappell v. Mandeville, 706 F.3d 1052, 1062 (9th Cir. 2013). 1 First, the U.S. Supreme Court has held that “[as] long as the conditions or degree of 2 confinement to which the prisoner is subjected is within the sentence imposed upon him and is 3 not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an 4 inmate’s treatment by prison authorities to judicial oversight.” Hewitt v. Helms, 459 U.S. 460, 5 468 (1983), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 480-84 (1995). 6 Initially, the law is clear that time spent in administrative segregation and/or disciplinary 7 segregation is the type of condition of confinement ordinarily contemplated by a prisoner’s 8 sentence. Sandin, 515 U.S. at 485 (“Discipline by prison officials in response to a wide range of 9 misconduct falls within the expected parameters of the sentence imposed by a court of law.”); 10 Hewitt, 459 U.S. at 468 (“It is plain that the transfer of an inmate to less amendable and more 11 restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily 12 contemplated by a prison sentence. … . Accordingly, administrative segregation is the sort of 13 confinement that inmates should reasonably anticipate receiving at some point in their 14 incarceration.”); Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000) (stating that “unlike a 15 convicted prisoner, a pretrial detainee may have a liberty interest in not being placed in 16 disciplinary segregation”); May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (finding no liberty 17 interest in avoiding placement in disciplinary segregation before a disciplinary hearing). Further, 18 Plaintiff has failed to allege any facts demonstrating that the conditions or degree of disciplinary 19 confinement to which he was subjected was otherwise violative of the Constitution. Therefore, 20 Plaintiff has not established that the Due Process Clause afforded him a protected liberty interest 21 in avoiding confinement in administrative and/or disciplinary segregation without notice of the 22 cause for confinement or a disciplinary hearing. 23 Second, “a liberty interest in avoiding particular conditions of confinement may arise from 24 state policies or regulations[.]” Wilkinson v. Austin, 545 U.S. 209, 222 (2005). State-created 25 liberty interests are “generally limited to freedom from restraint which, while not exceeding the 26 sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of 27 its own force, … nonetheless imposes atypical and significant hardship on the inmate in relation 28 to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. “Rather than invoking a single 1 standard for determining whether a prison hardship is atypical and significant, [courts] rely on a 2 ‘condition or combination of conditions or factors [that] requires case by case, fact by fact 3 consideration.” Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003). 4 In this case, Plaintiff asserts that his placement and retention in disciplinary and 5 administrative segregation for a total of approximately 16 months imposed an atypical and 6 significant hardship on him in relation to the ordinary incidents of prison life. However, Plaintiff 7 has failed to allege any facts describing the conditions of his confinement in segregated housing 8 and comparing the conditions imposed upon him to the conditions imposed upon other inmates in 9 general population, protective custody, or segregated housing. See Serrano, 345 F.3d at 1078-79 10 (stating that the conditions imposed on a plaintiff in the SHU constituted an atypical and 11 significant hardship on the plaintiff because, since the plaintiff was disabled and the SHU was not 12 designed for disabled persons, the plaintiff was forced “to endure a situation far worse than a non- 13 disabled prisoner sent to the SHU would have to face[]”); Bryant v. Cortez, 536 F. Supp. 2d 1160, 14 1166-67 (C.D. Cal. 2007) (finding an 18-month period of confinement in an administrative 15 segregation unit where there were restrictions on plaintiff’s exercise, shower, hygiene, visitation, 16 telephone, work, and education privileges did not create an atypical and significant hardship on 17 the plaintiff). 18 Further, Plaintiff has failed to allege any facts demonstrating that his placement and 19 retention in ASU and/or SHU “will inevitably affect the duration of his sentence.” Sandin, 515 20 U.S. at 487. While Plaintiff asserts that placement in ASU and/or SHU increases an inmate’s 21 placement score and that a placement score above 60 significantly decreases success with the 22 parole board, Plaintiff has failed to allege that he has a placement score above 60. Furthermore, 23 even if Plaintiff has a placement score above 60, a decrease of success with the parole board is 24 not something that “inevitably affect[s] the duration of [an inmate’s] sentence.” Id.; see also 25 Wilkinson, 545 U.S. at 223-24 (finding “an atypical and significant hardship within the 26 correctional context” where, in addition to several other harsh conditions, placement at the 27 supermax facility disqualifies an otherwise eligible inmate for parole consideration). 28 Additionally, while Plaintiff asserts that his placement in SHU affected his credits and, thus, 1 increased the time that he will have to spend in prison, this conclusory statement is unsupported 2 by any facts showing how his placement and retention in SHU affected his credits and will 3 “inevitably” increase the time that he will have to spend in prison. Sandin, 515 U.S. at 487. 4 Therefore, Plaintiff has failed to establish that his placement and retention in disciplinary 5 and/or administrative segregation “present[s] the type of atypical, significant deprivation in which 6 a State might conceivably create a liberty interest.” Sandin, 515 U.S. at 486. Accordingly, since 7 Plaintiff has not established that the decision to initially place and then to retain Plaintiff in ASU 8 and/or SHU interfered with any of Plaintiff’s protected federal or state-created liberty interests, 9 Plaintiff has not stated a cognizable Fourteenth Amendment due process claim based on his 10 placement and retention in ASU and/or SHU. Plaintiff was previously advised of the legal and 11 pleading standards for due process claims in the Court’s prior orders screening Plaintiff’s original 12 and first amended complaints and provided an opportunity to amend. The Court concludes that 13 further leave to amend would be futile. 14 2. Administrative Appeal Process 15 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations 16 of life, liberty, or property; and those who seek to invoke its procedural protection must establish 17 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Here, 18 Plaintiff alleges that his 602 administrative appeal concerning his placement in SHU was 19 improperly cancelled and then his 602 administrative appeal challenging the improper 20 cancellation of his prior appeal was erroneously denied. However, Plaintiff does not have a 21 protected liberty interest in the processing and resolution of his administrative appeals. Ramirez 22 v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 23 1988)). Therefore, he cannot pursue a claim for denial of due process with respect to the handling 24 or resolution of his appeals against any Defendant. Plaintiff was previously advised of this 25 deficiency in the Court’s prior order screening Plaintiff’s first amended complaint and provided 26 an opportunity to amend. The Court concludes that further leave to amend would be futile. 27 /// 28 /// 1 D. Eighth Amendment – Conditions of Confinement 2 The Eighth Amendment protects prisoners from inhumane methods of punishment and 3 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 4 2006). Prison officials therefore have a “duty to ensure that prisoners are provided adequate 5 shelter, food, clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 6 726, 731 (9th Cir. 2000) (citations omitted). “Although the routine discomfort inherent in the 7 prison setting is inadequate to satisfy the objective prong of an Eighth Amendment inquiry, ‘those 8 deprivations denying “the minimal civilized measure of life’s necessities” are sufficiently grave 9 to form the basis of an Eighth Amendment violation.’” Id.; see also Hudson v. McMillian, 503 10 U.S. 1, 9 (1992). “The circumstances, nature, and duration of a deprivation of these necessities 11 must be considered in determining whether a constitutional violation has occurred.” Id. 12 “A prisoner claiming an Eighth Amendment violation must show (1) that the deprivation 13 he suffered was ‘objectively, sufficiently serious’; and (2) that prison officials were deliberately 14 indifferent to his [health or] safety in allowing the deprivation to take place.” Morgan, 465 F.3d 15 at 1045. Thus, a prison official may be held liable under the Eighth Amendment for denying 16 humane conditions of confinement only if the official knows that the plaintiff faced a substantial 17 risk of harm and disregarded that risk by failing to take reasonable measures to abate it. Farmer 18 v. Brennan, 511 U.S. 825, 837-45 (1994). 19 Here, Plaintiff alleges that Defendants Patterson, Sexton, and Oliveira violated his Eighth 20 Amendment rights when, as members of the Institution Classification Committee, they decided to 21 retain Plaintiff in the SHU on Administrative SHU segregation. While Plaintiff has alleged that 22 he was housed in administrative segregation from October 2015 to July 2016, Plaintiff has failed 23 to allege any facts describing the conditions in administrative segregation. Since Plaintiff has not 24 alleged any facts showing that he was deprived of adequate food, drinking water, sanitation, 25 personal hygiene items, exercise, or any other measure of life’s necessities while he was housed 26 in administrative segregation, Plaintiff has not established that he was subjected to conditions 27 sufficiently grave to fall within the purview of the Eighth Amendment. May v. Baldwin, 109 28 F.3d 557, 565-66 (9th Cir. 1997). Additionally, Plaintiff has not alleged any facts showing that 1 Defendants Patterson, Sexton and/or Oliveira knew Plaintiff faced a substantial risk of harm and 2 disregarded that risk by failing to take reasonable measures to abate the risk. Therefore, Plaintiff 3 has failed to allege a cognizable Eighth Amendment conditions of confinement claim. Plaintiff 4 was previously advised of the legal and pleading standards applicable to an Eighth Amendment 5 conditions of confinement claim in the Court’s prior order screening Plaintiff’s first amended 6 complaint and provided with an opportunity to amend. The Court concludes that further leave to 7 amend would be futile. 8 IV. 9 CONCLUSION AND RECOMMENDATION 10 Based on the foregoing, Plaintiff’s second amended complaint fails to state a cognizable 11 claim for relief against any named Defendant. Plaintiff was previously notified of the applicable 12 pleading and legal standards and the deficiencies in his pleading in the Court’s February 27, 2019 13 and August 14, 2019 orders screening Plaintiff’s original and first amended complaints. Despite 14 guidance from the Court, Plaintiff’s second amended complaint is substantially similar to 15 Plaintiff’s original and first amended complaints. Based upon the allegations in Plaintiff’s 16 original, first amended, and second amended complaint, the Court is persuaded that Plaintiff is 17 unable to allege any additional facts to support his claims, and that further amendment would be 18 futile. Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1130 (9th Cir. 2013) (“A 19 district court may deny leave to amend when amendment would be futile.”). Hence, further leave 20 to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 21 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed, with 22 prejudice, for failure to state a cognizable claim upon which relief may be granted. 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty 25 (30) days after being served with these Findings and Recommendations, Plaintiff may file written 26 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 27 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 28 specified time may result in the waiver of the “right to challenge the magistrate’s factual 1 | findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 2 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ October 24, 2019 ; ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13