(PC) Bahena v. Mendoza ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ESMELING L. BAHENA, Case No. 1:22-cv-01585-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO 13 v. RANDOMLY ASSIGN DISTRICT JUDGE 14 LEMON, et al., FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN 15 Defendants. CLAIMS AND DEFENDANTS 16 ECF No. 21 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Esmeling L. Bahena (“Plaintiff”) is a state prisoner proceeding pro se and in 20 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this 21 action on June 10, 2022 in the Sacramento Division of the United States District Court of the 22 Eastern District of California. (ECF No. 1.) The action was transferred to the Fresno Division on 23 December 12, 2022. (ECF No. 14.) Plaintiff moved for leave to file a first amended complaint 24 and leave was granted. The Court screened Plaintiff’s first amended complaint, and Plaintiff was 25 granted leave to amend. Plaintiff second amended complaint, filed on February 21, 2023, is 26 currently before the Court for screening. (ECF No. 21.) 27 I. Screening Requirement and Standard 28 The Court is required to screen complaints brought by prisoners seeking relief against a 1 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 2 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 3 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 4 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 5 A complaint must contain “a short and plain statement of the claim showing that the 6 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 7 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 8 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 9 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 10 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 11 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 12 To survive screening, Plaintiff’s claims must be facially plausible, which requires 13 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 14 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 15 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 16 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 17 18 II. Plaintiff’s Allegations 19 Plaintiff is currently housed at California State Prison in Sacramento, California. The 20 events in the complaint are alleged to have occurred while Plaintiff was housed at Kern Valley 21 State Prison (“KVSP”) and Salinas Valley State Prison (“SVSP”). Plaintiff names as defendants: 22 (1) Kathleen Allison, California Department of Corrections and Rehabilitation, Secretary, (2) D. 23 Williams, Sergeant, KVSP, (3) Mendoza, correctional officer, KVSP, (4) Allen, CC1 correctional 24 counselor, KVSP, (5) J. Duran, I.G.I. correctional officer, KVSP, (6) J. Guerra, correctional 25 officer, KVSP, (7) Jane Doe, correctional officer at SVSP. All individuals are sued in their 26 individual and official capacities. 27 In claim 1, Plaintiff alleges deliberate indifference and failure to protect in violation of the 28 1 Eighth Amendment and violation of Due Process. On 6/17/21, while Plaintiff appeared before 2 (ICE) at SVSP Ad-Seg Unit Committee, Plaintiff notified Jane Doe correctional counselor and 3 Warden T. Lemon that Plaintiff had safety concerns at KVSP. If Plaintiff were to be sent to 4 KVSP, Plaintiff’s life would be in danger due to an ongoing lawsuit Plaintiff had against active 5 duty KVSP officers. Plaintiff feared that correctional officers or their co-workers will retaliate 6 against Plaintiff or use other inmates to harm Plaintiff as they had done so in the past. Plaintiff 7 requested from CC2 Jane Doe 2-91 Ad-Seg correctional counselor to help Plaintiff and not to send 8 him to KVSP. For Plaintiff’s health and safety, if she sent him to KVSP and something were to 9 happen to Plaintiff, she would be responsible. CC2 Jane Doe failed to do her job and neglected 10 Plaintiff’s request, knowing the seriousness of Plaintiff’s situation. Defendant Jane Doe (CC3) 11 still sent Plaintiff to KVSP without taking into consideration Plaintiff’s health and safety and was 12 deliberately indifferent to Plaintiff’s life and safety. CC2 Jane Doe was put on notice, was aware 13 that Plaintiff’s life could be in danger if she sent Plaintiff to KVSP, and she still sent Plaintiff to 14 KVSP. She knew the repercussions Plaintiff could suffer at KVSP and did suffer; all of which 15 could have been avoided if Jane Doe CC2 had done her job and sent Plaintiff to another 16 institution. Plaintiff suffered physical and mental injuries, loss of property, harassment, and 17 retaliation. 18 In claim 2, Plaintiff alleges a violation of the Fourteenth Amendment Equal Protection, 19 failure to protect in violation of the Eighth Amendment and negligence. 20 On 8/12/21, when Plaintiff arrived at KVSP Receiving and Release, Plaintiff reported to 21 defendant Sergeant D. Williams that Plaintiff had safety concerns due to an ongoing lawsuit 22 Plaintiff had against active duty correctional officers currently working in Charlie yard. 23 Defendant D. Williams was going to send Plaintiff to Charlie yard. Plaintiff explained that the 24 last time Plaintiff was housed in Charlie yard, correctional officers harassed and assaulted 25 Plaintiff for which Plaintiff filed and had an ongoing lawsuit. Plaintiff begged D. Williams not to 26 send Plaintiff to Charlie yard or re-house Plaintiff in Ad-Seg while D. Williams investigated 27 1 Plaintiff has not named as a defendant in the list of defendants Jane Does 2-9 correctional 28 counselor. Fed.R.Civ.P. 10(a). Nonetheless, the Court will liberally construe the allegations. 1 Plaintiff’s allegations. Plaintiff told D. Williams that officers or coworkers will retaliate against 2 Plaintiff by causing harm or will harass Plaintiff or use other inmates to harm Plaintiff. D. 3 Williams said “no” you cannot do that, and Defendant was not going to help Plaintiff. He sent 4 Plaintiff to Charlie yard where Plaintiff claimed he had safety concerns. Plaintiff told D. 5 Williams that if anything happened to Plaintiff D. Williams would be responsible. In Charlie 6 yard, Plaintiff suffered physical and mental injuries, loss of personal property, loss of lawsuit, 7 suffered harassment and retaliation. 8 In claim 3, Plaintiff alleges violation of the Fourteenth Amendment Equal Protection, 9 violation of the Eighth Amendment and retaliation and excessive force. On about 10/11/21, while 10 housed at KVSP, building 8 on Charlie yard, cell #203 EOP Building, second watch control tower 11 officer Mendoza cracked Plaintiff’s cell door open a little bit such that Plaintiff was able to stick 12 his hand out. Mendoza always did that to tell and notify inmates that they had mental health 13 group. As Plaintiff was waiting for Mendoza to fully open the door, an inmate worker 14 approached Plaintiff’s front cell door and handed Plaintiff a CD with a CD case through the crack 15 of Plaintiff’s cell door. As Plaintiff reached to grab the CD, Defendant Mendoza immediately 16 shut Plaintiff cell door closed. It was like Mendoza was purposely waiting for Plaintiff to put his 17 hand out so he could close the door. Mendoza had done this in the past, and this was the third 18 time. 19 When Mendoza closed the door, Plaintiff’s fingers got caught. If Plaintiff had not pulled 20 his hand back, Plaintiff’s whole hand would have gotten caught. Plaintiff screamed and the 21 building worker screamed for Mendoza to open the door because Plaintiff’s fingers were caught. 22 Plaintiff’s hand was bleeding very badly and Plaintiff was in severe pain. Mendoza just laughed 23 and walked away from the section window. Plaintiff’s cellmate started screaming at Defendant 24 Mendoza to open the door because Plaintiff’s hand was caught in the door. Mendoza kept 25 ignoring their pleas by walking away from the tower section window. The inmate worker went to 26 get the floor officers. Officers Arellano and a female officer told Defendant Mendoza to open 27 Plaintiff’s cell door so they could take Plaintiff to medical. 28 When Plaintiff was taken to the building rotunda medical to see the nurse to get something 1 to stop the bleeding. The nurse gave Plaintiff some gauze to hold the blood and stop the bleeding 2 because Plaintiff was bleeding with blood dripping down his fingers. The nurse asked Plaintiff to 3 move his fingers, but he could not. 4 As Plaintiff was waiting, “Arellano and Defendant Mendoza tried to minimize and hurt 5 me so I won’t report this incident.” Both officers said that they felt bad and if I didn’t report any 6 of the incident, they would give Plaintiff a building porter job. Plaintiff responded with “okay” 7 and Plaintiff knew the officers were doing it to bribe Plaintiff to keep the incident silent. 8 In claim 4, on 10/22/21, Defendant Officer J. Duran while working overtime in KVSP, C- 9 8 building, denied plaintiff of his right to his scheduled phone call and also denied Plaintiff his 10 right to work. Defendant J. Duran knew Plaintiff from the last time Plaintiff was in KVSP and 11 was aware that Plaintiff is suing some of Duran’s co-workers. So J. Duran kept Plaintiff inside 12 his cell and denied Plaintiff access contact with his family and his worker hours. On 2/4/22 13 around third watch in KVSP, C-8 building, J. Guerra was in charge of inventorying and trans 14 packing Plaintiff’s personal property. Defendant J. Guerra purposely and maliciously threw away 15 half of Plaintiff’s property and disposed of the rest of Plaintiff’s property. She also threw away 16 Plaintiff’s legal documents that were related to the lawsuit Plaintiff had against KVSP. 17 In claim 5, Plaintiff alleges failure to protect and deliberate indifference and negligence. 18 Plaintiff wrote a notification letter to the Secretary of CDCR, Defendant Allison, notifying her of 19 his safety concerns at KVSP. Plaintiff asked Allison to help him while housed at SVSP and 20 before his transfer to KVSP. Plaintiff asked that the transfer to KVSP be stopped because 21 Plaintiff’s life would be in danger based upon the ongoing lawsuit against active duty KVSP 22 correctional officers. Plaintiff also put her on notice that if she failed to do her job and help 23 Plaintiff, she would held accountable for what happens to Plaintiff. “Defendant”2 was harassed 24 and physically hurt by KVSP officials because Defendant Allison failed to do her job and help 25 Plaintiff. 26 As remedies, Plaintiff seeks compensatory and punitive damages, a restraining order, and 27 2 The court believes that Plaintiff erroneously wrote “Defendant” when he meant to refer to 28 himself as “Plaintiff.” (ECF No. 21, p. 9.) 1 declaratory relief. 2 III. Discussion 3 With the exception of the claim described below, Plaintiff’s complaint fails to comply 4 with Federal Rules of Civil Procedure 8, 18 and 20 and fails to state a cognizable claim under 42 5 U.S.C. § 1983. Despite being provided the relevant pleading and legal standards, Plaintiff has 6 been unable to cure the deficiencies. 7 A. Federal Rule of Civil Procedure 8 8 Pursuant to Rule 8, a complaint must contain “a short and plain statement of the claim 9 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed factual allegations 10 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 11 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must 12 set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on 13 its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual allegations 14 are accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556–57; Moss, 15 572 F.3d at 969. 16 Here, Plaintiff’s complaint is relatively short, but it is not a plain statement of his claims 17 showing that he is entitled to relief. Many of Plaintiff’s allegations are conclusory and do not 18 state what happened, when it happened, or which defendant was involved. General assertions 19 regarding who knew what about Plaintiff are not sufficient, and Plaintiff may not merely state the 20 elements of a cause of action without providing any factual allegations in support of his claims. 21 For instance, Plaintiff does not state any facts of what happened to him once he was moved to 22 KVSP, but instead alleges the was “harassed,” “suffered physical and mental injuries,” and lost 23 property. These are not factual allegations. Further, Plaintiff improperly joins claims. Plaintiff 24 has been unable to cure this deficiency. 25 B. Federal Rules of Civil Procedure 18 and 20 26 Plaintiff may not bring unrelated claims against unrelated parties in a single action. Fed. 27 R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 28 507 F.3d 605, 607 (7th Cir. 2007); Mackey v. Price, 2020 WL 7319420, at *3–4 (E.D. Cal. Dec. 1 11, 2020), report and recommendation adopted, 2021 WL 843462 (E.D. Cal. Mar. 5, 2021). 2 Plaintiff may bring a claim against multiple defendants so long as (1) the claim arises out of the 3 same transaction or occurrence, or series of transactions and occurrences, and (2) there are 4 commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 5 1351 (9th Cir. 1997). The “same transaction” requirement refers to similarity in the factual 6 background of a claim. Id. at 1349. Only if the defendants are properly joined under Rule 20(a) 7 will the Court review the other claims to determine if they may be joined under Rule 18(a), which 8 permits the joinder of multiple claims against the same party. 9 Plaintiff was informed that Plaintiff may not raise different claims against different 10 defendants in a single action. For instance, Plaintiff may not bring multiple claims arising in 11 different institutions, KVSP and SVSP. Claims arising in different institutions must be brought in 12 different lawsuits. Merely because Plaintiff was concerned about his safety at different 13 institutions does not make every injury or incident related. 14 In addition, Plaintiff was informed in the Court’s prior screening order that “Plaintiff may 15 not change the nature of this suit by adding new, unrelated claims in his second amended 16 complaint” (ECF No. 19, p. 15.) Plaintiff has added a new, unrelated claim of retaliation (claim 17 4) for being deprived of phone calls and work. This claim was not in the first amended complaint 18 and is unrelated to the main claim regarding safety concerns in his move to KVSP. The Court 19 declines to expend its already taxed resources to screen unrelated claims which were joined in 20 violation of the Court’s screening order. Plaintiff was previously informed that “if unrelated 21 claims are joined, the Court will select which cognizable claim may proceed.” (ECF No. 19 p. 6.) 22 C. Supervisory Liability 23 To the extent Plaintiff seeks to hold the Secretary liable based solely upon their 24 supervisory role, he may not do so. Liability may not be imposed on supervisory personnel for 25 the actions or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 26 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. 27 City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th 28 Cir. 2002). “A supervisor may be liable only if (1) he or she is personally involved in the 1 constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor's 2 wrongful conduct and the constitutional violation.” Crowley v. Bannister, 734 F.3d 967, 977 (9th 3 Cir. 2013) (citation and quotation marks omitted); accord Lemire v. Cal. Dep't of Corrs. & 4 Rehab., 726 F.3d 1062, 1074–75 (9th Cir. 2013); Lacey v. Maricopa Cty., 693 F.3d 896, 915–16 5 (9th Cir. 2012) (en banc). “Under the latter theory, supervisory liability exists even without overt 6 personal participation in the offensive act if supervisory officials implement a policy so deficient 7 that the policy itself is a repudiation of constitutional rights and is the moving force of a 8 constitutional violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 9 (9th Cir. 1989)) (internal quotation marks omitted). 10 Plaintiff alleges that he wrote Defendant Allison for help in stopping the transfer and she 11 did not help him. This allegation fails to establish she is personally involved in the constitutional 12 deprivation. There is no allegation that Plaintiff actually sent the letter (he alleges he wrote it), or 13 that Defendant Allison received and read the letter. Plaintiff merely relies on the supervising 14 Defendant’s responsibilities to ensure the safety and health of the prisoners, but this claim is 15 based on respondeat superior which is not cognizable under section 1983. Iqbal, 556 U.S. at 677. 16 Such conclusory allegations are insufficient to state the causal link between such defendant and 17 the claimed constitutional violation. 18 D. Official Capacity 19 Claims for damages against the state, its agencies, or its officers for actions performed in 20 their official capacities are barred under the Eleventh Amendment, unless the state waives its 21 immunity. Kentucky v. Graham, 473 U.S. 159, 169 (1985) (Eleventh Amendment bars a damages 22 action against a State in federal court); see also Will v. Michigan Dep't of State Police, 491 U.S. 23 58, 71 (1989). Suits for injunctive relief are also generally barred. See Nat'l Audubon Soc'y v. 24 Davis, 307 F.3d 835, 847 (9th Cir. 2002); Evans v. Diaz, No. 1:22-CV-00291 ADA BAMPC, 25 2022 WL 17417816, at *8 (E.D. Cal. Dec. 5, 2022) (Plaintiff may not pursue his claims for 26 monetary damages against Defendant Warden in his official capacity), report and 27 recommendation adopted, No. 1:22-CV-00291 ADA BAM PC, 2023 WL 317287 (E.D. Cal. Jan. 28 19, 2023). Plaintiff cannot state a claim against the officers in their official capacities. 1 E. Failure to Investigate 2 To the extent Plaintiff alleges that a failure to investigate his security concerns, violated 3 his rights for an inadequate investigation, Plaintiff's claims are not a basis for a plausible §1983 4 claim. Baker v. Beam, 2019 WL 1455321, at *6 (E.D. Cal. 2019); Drake v. Ibal, No. 1:22-CV- 5 01149 BAM PC, 2022 WL 18027808, at *8 (E.D. Cal. Dec. 30, 2022) (no claim for faulty 6 investigation for removal of evidence from the investigative file). To the degree Plaintiff is trying 7 to hold the individuals or others liable for an independent, unspecified constitutional violation 8 based upon an allegedly inadequate investigation, there is no such claim. See Gomez v. Whitney, 9 757 F.2d 1005, 1006 (9th Cir. 1985) (per curiam) (“[W]e can find no instance where the courts 10 have recognized inadequate investigation as sufficient to state a civil rights claim unless there was 11 another recognized constitutional right involved.”); Page v. Stanley, 2013 WL 2456798, at *8–9 12 (C.D. Cal. June 5, 2013) (dismissing Section 1983 claim alleging that officers failed to conduct 13 thorough investigation of plaintiff's complaints because plaintiff “had no constitutional right to 14 any investigation of his citizen's complaint, much less a ‘thorough’ investigation or a particular 15 outcome”); Tirado v. Santiago, No. 1:22-CV-00724 BAM PC, 2022 WL 4586294, at *5 (E.D. 16 Cal. Sept. 29, 2022), report and recommendation adopted, No. 1:22-CV-00724 JLT BAM PC, 17 2022 WL 16748838 (E.D. Cal. Nov. 7, 2022) (no constitutional claim for failing to investigate an 18 appeal). Plaintiff cannot cure this deficiency. 19 F. Failure to Protect 20 The crux of Plaintiff’s allegations is a failure to protect him from alleged harm. 21 The Eighth Amendment requires that prison officials take reasonable measures to 22 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In particular, 23 prison officials have a duty to protect prisoners from violence at the hands of other prisoners. Id. 24 at 833. The failure of prison officials to protect inmates from attacks by other inmates or from 25 dangerous conditions at the prison violates the Eighth Amendment when two requirements are 26 met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is, 27 subjectively, deliberately indifferent to inmate health or safety. Id. at 834. A prison official is 28 deliberately indifferent if he knows of and disregards an excessive risk to inmate health or safety 1 by failing to take reasonable steps to abate it. Id. at 837. 2 The official must both be aware of facts from which the inference could be drawn that a 3 substantial risk of serious harm exists, and he must also draw the inference. Id. However, an 4 Eighth Amendment claimant need not show that a prison official acted or failed to act believing 5 that harm actually would befall an inmate; it is enough that the official acted or failed to act 6 despite his knowledge of a substantial risk of serious harm. Id. at 842. Neither negligence nor 7 gross negligence will constitute deliberate indifference. Id. at 835-36 & n.4. 8 A prison official need not “believe to a moral certainty” that an inmate is at risk of harm 9 “before [he] is obligated to take steps to prevent such an assault,” but “he must have more than a 10 mere suspicion that an attack will occur.” Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) 11 (citation omitted). “[S]peculative and generalized fears of harm at the hands of other prisoners do 12 not rise to a sufficiently substantial risk of serious harm to [an inmate's] future health.” Williams 13 v. Wood, 223 F. App'x 670, 671 (9th Cir. 2007) (citation omitted). 14 Plaintiff must identify the individuals who he contends failed to protect him, and cannot 15 refer to all as “Defendants.” Plaintiff has only alleged that he told at KVSP Defendant D. 16 Williams of Plaintiff’s safety concerns. But Plaintiff has not alleged what happened and who was 17 involved and link each named individual to the alleged constitutional violations. Each Defendant 18 is entitled to know what conduct allegedly violated Plaintiff’s rights. Plaintiff does not allege 19 what happened to him and who was involved in being set up. Conclusory allegations are 20 insufficient. Plaintiff has not alleged what each did or did not do that subjected Plaintiff to injury 21 from unknown enemies. Indeed, the allegations do not assert what happened to him, who injured 22 him, how was he injured or that Plaintiff was injured. Further, Plaintiff may not join this claim 23 with other unrelated claims. 24 H. Eighth Amendment -Excessive Force and Deliberate Indifference to Medical 25 Care 26 The Eighth Amendment protects prisoners from inhumane methods of punishment and 27 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 28 2006). The unnecessary and wanton infliction of pain violates the Cruel and Unusual 1 Punishments Clause of the Eighth Amendment. Hudson v McMillian, 503 U.S. 1, 5 (1992) 2 (citations omitted). Although prison conditions may be restrictive and harsh, prison officials must 3 provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. 4 Farmer v. Brennan, 511 U.S. 825, 832–33 (1994) (quotations omitted). 5 “[W]henever prison officials stand accused of using excessive physical force in violation 6 of the [Eighth Amendment], the core judicial inquiry is...whether force was applied in a good- 7 faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” 8 Hudson, 503 U.S. at 6-7. Not “every malevolent touch by a prison guard gives rise to a federal 9 cause of action.” Id. at 9. De minimis uses of physical force do not violate the constitution 10 provided that the use of force is not of a sort “repugnant to the conscience of mankind.” Whitley 11 v. Albers, 475 U.S. 312, 327 (1986) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976). 12 For claims of excessive physical force, the issue is “whether force was applied in a good- 13 faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” 14 Hudson, 503 U.S. at 7. Relevant factors for this consideration include “the extent of injury... [,] 15 the need for application of force, the relationship between that need and the amount of force used, 16 the threat ‘reasonably perceived by the responsible officials,’ and ‘any efforts made to temper the 17 severity of a forceful response.’ ” Id. (quoting Whitley v. Albers, 475 U.S. 1078, 1085 (1986) ). 18 Finally, because the use of force relates to the prison's legitimate penological interest in 19 maintaining security and order, the court must be deferential to the conduct of prison officials. 20 See Whitley, 475 U.S. at 321–22. 21 As to the medical care, a prisoner's claim of inadequate medical care does not constitute 22 cruel and unusual punishment in violation of the Eighth Amendment unless the mistreatment rises 23 to the level of “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 24 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for 25 deliberate indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating 26 that failure to treat a prisoner's condition could result in further significant injury or the 27 ‘unnecessary and wanton infliction of pain,’ ” and (2) “the defendant's response to the need was 28 deliberately indifferent.” Jett, 439 F.3d at 1096. A defendant does not act in a deliberately 1 indifferent manner unless the defendant “knows of and disregards an excessive risk to inmate 2 health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Deliberate indifference is a 3 high legal standard,” Simmons v. Navajo County, Ariz, 609 F.3d 1011, 1019 (9th Cir. 2010); 4 Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was “a 5 purposeful act or failure to respond to a prisoner's pain or possible medical need” and the 6 indifference caused harm. Jett, 439 F.3d at 1096. 7 Liberally construing the allegations in the second amended complaint, Plaintiff alleges an 8 excessive force claim against Defendant Mendoza for the incident of closing the cell door on 9 Plaintiff’s fingers and deliberate indifference to medical care for failure to seek medical treatment 10 by walking away despite repeated calls for help. 11 I. Access to Courts 12 Inmates have a fundamental right of access to the courts. Lewis v. Casey, 518 U.S. 343, 13 346 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011) (“We have recognized that 14 prisoners’ First and Fourteenth Amendment rights to access the courts without undue interference 15 extend beyond the pleading stages”), overruled on other grounds as stated by Richey v. Dahne, 16 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). The right is limited to direct criminal appeals, habeas 17 petitions, and civil rights actions. Id. at 354. Claims for denial of access to the courts may arise 18 from the frustration or hindrance of “a litigating opportunity yet to be gained” (forward-looking 19 access claim) or from the loss of a meritorious suit that cannot now be tried (backward-looking 20 claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). A plaintiff must show that he 21 suffered an “actual injury” by being shut out of court. Lewis, 518 U.S. at 350-51. An “actual 22 injury” is one that hinders the plaintiff's ability to pursue a legal claim. Id. at 351. 23 A plaintiff must identify the underlying lawsuit that forms the basis of the claim with 24 sufficient detail so that the court can determine whether it was a non-frivolous, arguable claim. 25 Christopher v. Harbury,536 U.S. at 415 (“It follows that the underlying cause of action, whether 26 anticipated or lost, is an element that must be described in the complaint, just as much as 27 allegations must describe the official acts frustrating the litigation.”) A plaintiff must further 28 identify the acts that frustrated his claim, and how his claim was frustrated, as well as identify the 1 remedy sought. Further, this claim is not properly joined with other unrelated claims. Plaintiff 2 has been unable to cure this deficiency. 3 J. Deprivation of Property 4 Plaintiff alleges that his property was taken. 5 The Due Process Clause protects prisoners from being deprived of property without due 6 process of law, Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and prisoners have a protected 7 interest in their personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). Authorized 8 intentional deprivation of property pursuant to an established state procedure is actionable under 9 the Due Process Clause. Hudson v. Palmer, 468 U.S. 517, 532 & n.13 (1984) (citing Logan v. 10 Zimmerman Brush Co., 455 U.S. 422, 435–36 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th 11 Cir. 1985). On the other hand, “an unauthorized intentional deprivation of property by a state 12 employee does not constitute a violation of the procedural requirements of the Due Process 13 Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is 14 available.” Hudson, 468 U.S. at 533. And “California law provides an adequate post-deprivation 15 remedy for any property deprivations.” Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) 16 (citing Cal. Gov't Code §§ 810–95). Additionally, “the Due Process Clause is [ ] not implicated 17 by a negligent act of an official causing unintended loss of or injury to ... property.” Daniels v. 18 Williams, 474 U.S. 327, 328 (1986). 19 Plaintiff appears to be alleging an unauthorized intentional deprivation of his property. As 20 California law provides an adequate post-deprivation remedy, Plaintiff has failed to state a claim 21 under the Due Process Clause for deprivation of his property. 22 K. Retaliation 23 There are five basic elements to a First Amendment retaliation claim: “(1) An assertion 24 that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's 25 protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment 26 rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. 27 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 28 “ ‘[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he 1 suffered some other harm,’ Brodheim, 584 F.3d at 1269, that is ‘more than minimal,’ Robinson, 2 408 F.3d at 568 n.11. That the retaliatory conduct did not chill the plaintiff from suing the 3 alleged retaliator does not defeat the retaliation claim at the motion to dismiss stage. Id. at 569.” 4 Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (alteration in original). 5 Plaintiff appears to allege numerous adverse actions, including that certain defendants 6 tried to incite violence against Plaintiff and that someone helped orchestrate the theft of his legal 7 papers and legal work. However, Plaintiff's allegations are conclusory. Moreover, while Plaintiff 8 alleges that the adverse actions were done in retaliation, this is also conclusory. He does not 9 describe anything someone said or did specifically that would indicate that they took an adverse 10 action based on Plaintiff filing lawsuits. Plaintiff has not sufficiently alleged that any defendant 11 took an adverse action against Plaintiff because he engaged in protected conduct. Further, 12 Plaintiff fails to state a cognizable claim against Arellano and Mendoza, because, among other 13 deficiencies, Plaintiff does not allege any adverse action by Arellano and Mendoza. Plaintiff has 14 been unable to cure these deficiencies. 15 L. Equal Protection 16 The Equal Protection Clause requires the State to treat all similarly situated people 17 equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 18 L.Ed.2d 313 (1985). This does not mean, however, that all prisoners must receive identical 19 treatment and resources. See Cruz v. Beto, 405 U.S. 319, 322 n. 2, 92 S.Ct. 1079, 31 L.Ed.2d 263 20 (1972); Ward v. Walsh, 1 F.3d 873, 880 (9th Cir. 1993); Allen v. Toombs, 827 F.2d 563, 568–69 21 (9th Cir. 1987). 22 “To prevail on an Equal Protection claim brought under § 1983, Plaintiff must allege facts 23 plausibly showing that ‘ “the defendants acted with an intent or purpose to discriminate against 24 [them] based upon membership in a protected class,’ ” (citing Thornton v. City of St. Helens, 425 25 F.3d 1158, 1166 (9th Cir. 2005)) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 26 2001)), or that similarly situated individuals were intentionally treated differently without a 27 rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553 28 U.S. 591, 601-02, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008); Village of Willowbrook v. Olech, 528 1 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 2 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 3 2008). 4 Plaintiff has not stated a cognizable equal protection claim. Plaintiff does not allege that 5 he was discriminated against because of his membership in any protected class. He also does not 6 allege factual support that he was intentionally treated differently than other similarly situated 7 inmates without a rational relationship to a legitimate state purpose. Plaintiff has not provided 8 any factual support for this claim. Fletcher v. Clendenin, No. 1:22-CV-00249 AWI BAM, 2022 9 WL 2791480, at *5 (E.D. Cal. July 15, 2022) (Equal Protection claim dismissed for failure to 10 allege factual support for denial of treatment based on membership in a protected class). Plaintiff 11 has been unable to cure this deficiency. 12 M. State Law Claims 13 To the extent Plaintiff also alleges violations of California law, Plaintiff was informed that 14 the California Government Claims Act requires that a tort claim against a public entity or its 15 employees be presented to the California Victim Compensation and Government Claims Board 16 no more than six months after the cause of action accrues. Cal. Gov't Code §§ 905.2, 910, 911.2, 17 945.4, 950-950.2. Presentation of a written claim, and action on or rejection of the claim are 18 conditions precedent to suit. State v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 19 1239 (Cal. 2004); Shirk v. Vista Unified School District, 42 Cal.4th 201, 209 (2007). To state a 20 tort claim against a public employee, a plaintiff must allege compliance with the California Tort 21 Claims Act. Cal. Gov't Code § 950.6; Bodde, 32 Cal.4th at 1244. “[F]ailure to allege facts 22 demonstrating or excusing compliance with the requirement subjects a compliant to general 23 demurrer for failure to state a cause of action.” Bodde, 32 Cal.4th at 1239. 24 As Plaintiff has not alleged compliance with the Government Claims Act, he has failed to 25 state a claim under California law. 26 Moreover, to the extent that defendants have not complied with applicable state statutes or 27 prison regulations, these deprivations do not support a claim under § 1983. Section 1983 only 28 provides a cause of action for the deprivation of federally protected rights. See e.g., Nible v. Fink, 1 828 Fed. Appx. 463 (9th Cir. 2020) (violations of Title 15 of the California Code of Regulations 2 do not create private right of action); Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) 3 (section 1983 claims must be premised on violation of federal constitutional right); Prock v. 4 Warden, No. 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at *11–12 (E.D. Cal. Oct. 8, 2013) 5 (noting that several district courts have found no implied private right of action under title 15 and 6 stating that “no § 1983 claim arises for [violations of title 15] even if they occurred.”); Parra v. 7 Hernandez, No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. Cal. Nov. 13, 2009) 8 (granting motion to dismiss prisoner's claims brought pursuant to Title 15 of the California Code 9 of Regulations); Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW (PC), 2009 WL 10 1211372, at *9 (E.D. Cal. May 1, 2009) (holding that there is no private right of action under 11 Title 15 of the California Code of Regulations). 12 IV. Conclusion and Recommendation 13 Based on the above, the Court finds that Plaintiff’s second amended complaint states a 14 cognizable claim against Defendant Mendoza for excessive force for the incident of closing the 15 cell door on Plaintiff’s fingers and deliberate indifference to medical care for failure to seek 16 medical treatment by walking away despite repeated calls for help. However, Plaintiff’s 17 complaint fails to state any other cognizable claims for relief against any other Defendants. 18 Accordingly, the Court HEREBY DIRECTS the Clerk of the Court to randomly assign a 19 district judge to this action. 20 Further, it is HEREBY RECOMMENDED that: 21 1. This action proceed on Plaintiff’s second amended complaint, filed on February 21, 2023, 22 (ECF No. 21), against Defendant Mendoza3 for excessive force for the incident on 23 October 11, 2021 of closing the cell door on Plaintiff’s fingers and deliberate indifference 24 to medical care for failure to seek medical treatment by walking away despite repeated 25 calls for help, in violation of the Eighth Amendment; and 26 27 3 Plaintiff alleges this incident occurred on October 11, 2021, while housed at KVSP, Building 8 on Charlie yard, cell #203, EOP Building, and Defendant Mendoza was Second Watch Control 28 Tower Officer. 1 2. All other claims and defendants be dismissed, with prejudice, based on Plaintiff’s failure 2 to state claims upon which relief may be granted. 3 * * * 4 These Findings and Recommendations will be submitted to the United States District 5 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 6 being served with these Findings and Recommendations, Plaintiff may file written objections 7 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 8 and Recommendations.” Plaintiff is advised that the failure to file objections within the specified 9 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 10 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 11 F.2d 1391, 1394 (9th Cir. 1991)). 12 IT IS SO ORDERED. 13 14 Dated: March 15, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28