(PC) Mois v. Ciolli ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 EMANUEL MOIS, Case No. 1:20-cv-00885-AWI-CDB (PC) 11 Plaintiff, ORDER ADOPTING FINDINGS AND 12 v. RECOMMENDATIONS AND DISMISSING SECOND AMENDED COMPLAINT 13 A. CIOLLI, et al., WITHOUT LEAVE TO AMEND 14 Defendants. (Doc. No. 25) 15 Clerk of the Court to close the case. 16 17 Plaintiff Emanuel Mois is a federal prisoner proceeding pro se and in forma pauperis in 18 this civil rights action filed under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 19 388 (1971). This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 20 § 636(b)(1)(B) and Local Rule 302. 21 On December 15, 2021, the assigned magistrate judge issued a screening order, finding 22 that Plaintiff’s second amended complaint fails to state a claim upon which relief may be granted. 23 (Doc. No. 25.) In particular, the court found that Bivens does not extend to plaintiff’s First 24 Amendment claim and his Eighth Amendment claims were speculative, conclusory, and 25 unsupported by factual allegations. (Id. at 8–9.) The magistrate judge found that further 26 amendment would be futile and recommended the dismissal of the action. (Id. at 9.) 27 Plaintiff filed timely objections. (Doc. No. 26.) Plaintiff argues that defendants denied 1 | demonstrate that Bivens should be extended to address his First Amendment claim. Additionally, 2 | plaintiff acknowledges that no physical force was used against him, but he argues that defendants 3 | violated his Eighth Amendment rights by denying him his First Amendment rights. 4 The magistrate judge correctly determined that the second amended complaint does not 5 || state a claim under Bivens for a First Amendment violation or a claim for cruel and unusual 6 || punishment under the Eighth Amendment. Although not addressed in the findings and 7 || recommendations, this court also finds that plaintiff is not entitled to damages for mental or 8 | emotional injuries absent a physical injury. 42 U.S.C. § 1997e(e) (“No Federal civil action may 9 | be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or 10 | emotional injury suffered while in custody without a prior showing of physical injury ... .””); 11 Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002). Plaintiff's Eighth Amendment claim also 12 || fails for this reason. 13 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(©), this court has conducted a 14 | de novo review of this case. Having carefully reviewed the entire file, the court finds the findings 15 | and recommendations to be supported by the record and proper analysis. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The findings and recommendations issued on December 15, 2021 (Doc. No. 25) 18 are ADOPTED IN FULL; 19 2. This action is DISMISSED WITH PREJUDICE for failure to state a claim upon 20 which relief may be granted; and 21 3. The Clerk of the Court is directed to terminate all pending motions and to close 22 this case. 23 54 IT IS SO ORDERED. , | Dated: _April 7.2023 — 7 Sz, 7 Chloe — SENIOR DISTRICT JUDGE 26 27 28