(PC) Jackson v. Griffith ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRED JAY JACKSON, Case No. 1:20-cv-00073-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. TO DISMISS CLAIMS AND TO PROCEED ON SINGLE COGNIZABLE CLAIM 14 L. D. GRIFFITH, (Doc. 19) 15 Defendant. 21-DAY OBJECTION PERIOD 16 Clerk of the Court to Assign a District Judge 17 18 Plaintiff Fred Jay Jackson is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Plaintiff filed his second amended complaint on June 10, 2021. (Doc. 19.) For the reasons 21 set forth below, the Court finds that Plaintiff’s second amended complaint states a cognizable due 22 process claim against Defendant Griffith, but does not state any other cognizable claims against 23 Defendant Griffith. Given that Plaintiff has received two opportunities to amend, the Court finds 24 that further amendment would be futile. See Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 25 2012). Therefore, the Court recommends that the non-cognizable claims be dismissed. 26 // 27 // // 1 I. SCREENING REQUIREMENT 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 4 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 5 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 6 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 7 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 8 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 9 II. PLEADING REQUIREMENTS 10 A. Federal Rule of Civil Procedure 8(a) 11 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 12 exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain 13 “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. 14 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 15 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 16 quotation marks & citation omitted). 17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 18 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 19 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 20 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 21 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as 22 true, but legal conclusions are not. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 23 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 24 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 25 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal 26 theories. Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation 27 of a civil rights complaint may not supply essential elements of the claim that were not initially 1 quotation marks & citation omitted), and courts “are not required to indulge unwarranted 2 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 3 marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 4 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 5 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted). 6 B. Linkage and Causation 7 Section 1983 provides a cause of action for the violation of constitutional or other federal 8 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 9 section 1983, a plaintiff must show a causal connection or link between the actions of the 10 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 11 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 12 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 13 act, participates in another’s affirmative acts, or omits to perform an act which he is legal required 14 to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 15 743 (9th Cir. 1978) (citation omitted). 16 III. DISCUSSION 17 A. Plaintiff’s Allegations 18 Plaintiff appears to have filed an action for medical negligence in state court in which 19 summary judgment was granted in favor of the defendant(s). (See Doc. 19 at 7.) Prior to granting 20 summary judgment, the state court denied Plaintiff’s request to appoint a medical expert to assist 21 him at public expense. (See id. at 6-9.) Plaintiff alleges that the trial court violated court rules and 22 state laws in denying his request. (See id. at 5-6, 12.) Plaintiff appealed the summary judgment 23 order, and the California Court of Appeal, Fifth Appellate District, and California Supreme Court 24 upheld the trial court’s decision. (See id. at 6, 10.) 25 Plaintiff’s medical negligence action appears to have stemmed from a “transrectal ultra 26 sound needle biopsy” performed by named defendant Lyle D. Griffith. (See Doc. 19 at 4, 9-10.) 27 Plaintiff alleges that because of the procedure, he developed “uncontrol[led] urine leakage.” (Id. 1 Plaintiff contends he was “clearly documented as being legally blind at the time” of the 2 procedure. (Doc. 19 at 10.) He alleges that he “could not read the medical consent form given to 3 him to sign” and that defendant “deliberately ignored” his vision disability. (Id.) Plaintiff 4 contends he was “never read the contents of” the consent form. (Id.) 5 Plaintiff also states that Dr. Griffith “intentionally failed to adequately disclose any other 6 viable alternative other available medical options such as an MRI or liquid MRI (non-invasive) 7 procedure.” (Id.) Plaintiff contends that had he been advised of the alternative, he “would have 8 100% decline[d] undergoing a procedure involving the cutting out of 12 simple tissue parts of his 9 prostate.” (Id.) Plaintiff contends he “was never informed of any risk or side effects of urine 10 leakage with the surgical procedure.” (Id.) 11 Plaintiff seeks the following relief: 12 Overruled and remand to Trial Court on the substantive 14th [] Amendment claims violation of plaintiff and the trial court judge 13 which are set forth in this second Amended Complaint or appoint Counsel to bring clarity to the issues plaintiff attempts to raise in his 14 reasoning by way of his Request for Appoint of Counsel which appear an exception Circumstance. 15 16 (Doc. 19 at 12.) 17 Based on the foregoing, Plaintiff raises due process, equal protection, and access to court 18 claims under the Fourteenth Amendment to the U.S. Constitution. (Doc. 19 at 5, 10.) He also 19 raises a claim under the California Constitution as to his first claim for relief. (Id. at 5.) 20 B. Claims for Relief 21 In his first claim1 for relief, Plaintiff cites to California state statutes, rules, and case law. 22 (Doc. 19 at 5-6.) He contends his federal and state constitutional rights were violated “resulting in 23 a miscarriage of justice” when the state trial, appellate and supreme courts “ignored the due 24 process/procedural process violations and denied plaintiff access to the court and equal protection 25 of the law.” (Id. at 6.) Plaintiff provides facts concerning actions taken in the trial court (id. at 6- 26 27 1 Plaintiff identified the following violations: “California Constitution article VI § section 13 due Process/equal Protection, access to court and Procedural Process violation of law resulting in miscarriage of justice, (14th) U.S. Constitution 14th amendment due process/equal protections rights abridged by 1 8), and contends those actions violated “procedural process” (id. at 8). Plaintiff contends he was 2 entitled to the assistance of a court-appointed expert at no cost, and because he was denied a 3 hearing, a miscarriage of justice resulted. (Id. at 9.) Plaintiff contends Dr. Griffith “deliberately 4 ignored” his “vision disability” and failed to “adequately disclose other available medical 5 options” versus the “ultra-sound transrectal guided needled biopsy” the doctor performed. (Id. at 6 10.) Plaintiff contends he would not have undergone the procedure had he been aware of the 7 available alternatives. (Id.) Plaintiff concludes, “[a]ll of the above alleged substantive due process 8 violations were raised at trial court, Court of Appeal and Supreme Court levels.” (Id.) 9 In his second claim2 for relief, Plaintiff recounts facts from December 2014 and January 10 2015 that led to Plaintiff undergoing a biopsy of his prostrate. (Doc. 19 at 10.) Plaintiff names Dr. 11 Griffith in his individual capacity, contending Dr. Griffith was acting under color of state law 12 when the doctor failed to ensure Plaintiff understood the consent form despite a visual disability 13 and failed to advise Plaintiff regarding the risks and side effects of the biopsy and “any other 14 medical options/alternatives.” (Id. at 10-11.) Plaintiff claims “a liberty interest in receiving such 15 information.” (Id.) 16 1. Procedural Due Process 17 The Fourteenth Amendment protects persons from deprivations of life, liberty, or property 18 without due process of law. U.S. Const. amend. XIV. When a protected interest is implicated, the 19 Due Process Clause provides certain procedural guarantees. Bd. of Regents of State Colleges v. 20 Roth, 408 U.S. 564, 569 (1972). The amount of process or specific procedures required vary by 21 context and the particular interest at stake. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). 22 Here, Plaintiff does not state a cognizable procedural due process claim. Plaintiff’s 23 allegations do not show that the state court denied him adequate process in denying his request to 24 appoint a medical expert to assist him in litigating his medical negligence case. As the Court 25 explained in its First Screening Order and Second Screening Order, parties in civil actions have 26 27 2 Plaintiff identified the following violations in his second claim for relief: “Plaintiff’s Due Process Fourteenth amendment rights to be free from unjustified intrusion of my body, to refuse unwanted medical treatment, and to receive sufficient information to exercise an inform decision to accept or reject proposed 1 no right under federal law to the appointment of experts at public expense. See, e.g., Newson v. 2 Shaw, No. 2:18-cv-02010-CKD, 2019 WL 5079545, at *2 (E.D. Cal. 2019), Medina v. Morris, 3 No. 3:09-cv-00169-JAH-KSC, 2014 WL 12686742, at *3 (S.D. Cal. 2014); see also Boring v. 4 Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987) (“no statutory authority . . . for payment of expert 5 witness fees in civil suits”). 6 Plaintiff contends that the state court violated various court rules and state laws in denying 7 his request for a court-appointed expert. However, and as explained in the Court’s Second 8 Screening Order, whether Plaintiff has a right to an expert under state law, or whether officials 9 violated state law in denying his request for an expert, does not determine whether Plaintiff has a 10 right to an expert under the Due Process Clause of the Fourteenth Amendment. Plaintiff has no 11 such right under the Due Process Clause. 12 To the extent Plaintiff’s complaint can be understood to state a claim against the state 13 trial, appellate and supreme courts, or the judges in those courts,3 those entities are not named as 14 defendants in this action. Nor could they be. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 15 70 (1989) (holding that “’arms of the State’ for Eleventh Amendment purposes” are not liable 16 under § 1983); Sato v. Orange Cty. Dep't of Educ., 861 F.3d 923, 928 (9th Cir. 2017) (Federal 17 court actions against agencies or instrumentalities of a state, including state courts, are also barred 18 by the Eleventh Amendment); Blount v. Sacramento County Superior Court, 559 Fed.Appx. 623, 19 623 (9th Cir. 2014) (same); Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 20 (9th Cir. 2003) (“Plaintiff cannot state a claim against the Sacramento County Superior Court … 21 because such suits are barred by the Eleventh Amendment); Demoran v. Witt, 781 F.2d 155, 156 22 (9th Cir. 1986) (“Courts have extended absolute judicial immunity from damage actions under 42 23 U.S.C. § 1983 not only to judges but also to officers whose functions bear a close association to 24 the judicial process”); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc) (“Judges 25 and those performing judge-like functions are absolutely immune from damage liability for acts 26 performed in their official capacities”); see also Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 27 3 Plaintiff’s second amended complaint identifies a single named defendant, L.D. Griffith. (Doc. 19 at 4-5.) However, throughout the amended complaint Plaintiff consistently references the state courts and their 1 2008); Partington v. Gedan, 961 F.2d 852, 860 n.8 (9th Cir. 1992); Houghton v. Osborne, 834 2 F.2d 745, 750 (9th Cir. 1987). 3 To the extent Plaintiff is attempting to appeal the results of his state court action, he 4 cannot do so because the Rooker-Feldman doctrine applies. Simply stated, federal district courts 5 do not hear “appeals” from state court actions. See District of Columbia Court of Appeals v. 6 Feldman, 460 U.S. 462, 474-82 (1983) (a federal district court lacks authority to review final 7 determinations of state or local courts because such review can only be conducted by the Supreme 8 Court of the United States); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). 9 As the Court noted in its Second Screening Order, Plaintiff also fails to link named 10 defendant Dr. Griffith to his procedural due process claim as he does not contend that Dr. Griffith 11 in any way caused the denial of his request for a court-appointed expert. A plaintiff must show 12 how the defendant’s actions or failures to act caused the constitutional violation of which he 13 complains. See Johnson v. Duffy, 588 F.2d at 743. Despite being afforded the opportunity to cure 14 this deficiency following the Court’s Second Screening Order, Plaintiff has not shown that Dr. 15 Griffith caused the trial court to deny Plaintiff’s request for a court-appointed expert in Plaintiff’s 16 medical negligence action. In sum, Plaintiff has failed to state a claim for a violation of his 17 procedural due process rights. 18 2. Equal Protection 19 “The Equal Protection Clause [of the Fourteenth Amendment] requires the State to treat 20 all similarly situated people equally.” Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008) 21 (citation omitted). To state an equal protection claim under section 1983, “a plaintiff must show 22 that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon 23 membership in a protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) 24 (citations omitted). “Intentional discrimination means that a defendant acted at least in part 25 because of a plaintiff’s protected status.” Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th 26 Cir. 1994) (emphasis removed) (citation omitted). 27 “The first step in equal protection analysis is to identify the state’s classification of 1 Bureau, 847 F.2d 593, 596 (9th Cir. 1988). “To accomplish this, a plaintiff can show that the law 2 is applied in a discriminatory manner or imposes different burdens on different classes of people.” 3 Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995). 4 “The next step … [is] to determine the level of scrutiny.” Country Classic Dairies, 847 5 F.2d at 595. “Classifications based on race,” for example, “are subject to strict scrutiny,” 6 Freeman, 68 F.3d at 1187, whereas classifications based on gender are subject to “intermediate 7 scrutiny,” Navarro v. Block, 72 F.3d 712, 716 (9th Cir. 1995) (citations omitted). Classifications 8 not based on a “suspect” class like race or gender are subject to “rational-basis review.” Romer v. 9 Evans, 517 U.S. 620, 631 (1996); Heller v. Doe by Doe, 509 U.S. 312, 320 (1993) (citations 10 omitted). Under this standard, a classification must have a rational relationship to a legitimate 11 state interest to comply with the Equal Protection Clause. See Romer, 517 U.S. at 631-32. 12 If an action does not involve an identifiable class, a plaintiff may still establish an equal 13 protection claim if she “alleges that she has been intentionally treated differently from others 14 similarly situated and that there is no rational basis for the difference in treatment.” Vill. of 15 Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citations omitted); Engquist v. Oregon Dep’t of 16 Agr., 553 U.S. 591, 601 (2008). 17 A plaintiff must prove two distinct elements to prevail on a § 1983 claim. He must 18 “allege the violation of a right secured by the Constitution and laws of the United States,” and 19 must also “show that the alleged deprivation was committed by a person acting under color of 20 state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Regarding the latter, Plaintiff alleges Dr. 21 Griffith acted “under color of state law in the scope of his employment.” (Doc. 19 at 11.)4 22 Although this allegation is conclusory, at the pleading stage and construed liberally, the Court 23 finds that Plaintiff has sufficiently alleged that the defendant was acting under color of state law. 24 As to the former, however, Plaintiff fails to state a cognizable equal protection claim. 25 First, he has not shown that Dr. Griffith “acted with an intent or purpose to discriminate 26 against the plaintiff based upon membership in a protected class,” Barren v. Harrington, 152 F.3d 27 at 1194, even assuming the protected class at issue is one with visual disabilities. Second, 1 Plaintiff has failed to allege he was intentionally treated differently from others similarly situated 2 and there was no rational basis for the difference in treatment. Vill. of Willowbrook v. Olech, 528 3 U.S. at 564. In other words, Plaintiff does not allege he was treated differently than other visually 4 disabled individuals who could not read the consent form themselves. 5 3. Access to Courts 6 Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 7 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977), limited in part on other grounds by 8 Lewis, 518 U.S. at 354; Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017) (“The most 9 fundamental of the constitutional protections that prisoners retain are the First Amendment rights 10 to file prison grievances and to pursue civil rights litigation in the courts, for ‘[w]ithout those 11 bedrock constitutional guarantees, inmates would be left with no viable mechanism to remedy 12 prison injustices’” (quoting Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005)); Phillips v. 13 Hust, 588 F.3d 652, 655 (9th Cir. 2009); Ching v. Lewis, 895 F.2d 608, 609–10 (9th Cir. 1990) 14 (per curiam) (holding that a prisoner’s right of access to the courts includes contact visitation with 15 his counsel). 16 This right “requires prison authorities to assist inmates in the preparation and filing of 17 meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance 18 from persons trained in the law.” Bounds, 430 U.S. at 828; see also Phillips, 588 F.3d at 655; 19 Madrid v. Gomez, 190 F.3d 990, 995 (9th Cir. 1999) (explaining that the right is limited, and that 20 prisoners need only have the minimal help necessary to file legal claims). The right, however, 21 “guarantees no particular methodology but rather the conferral of a capability – the capability of 22 bringing contemplated challenges to sentences or conditions of confinement before the courts. … 23 [It is this capability] rather than the capability of turning pages in a law library, that is the 24 touchstone” of the right of access to the courts. Lewis, 518 U.S. at 356-57. Prison officials may 25 select the best method to ensure that prisoners will have the capability to file suit. See id. at 356. 26 Prisons “might replace libraries with some minimal access to legal advice and a system of court- 27 provided forms … that asked the inmates to provide only the facts and not to attempt any legal 1 prisons have an obligation to provide photocopies and ink pens, where such services and 2 materials were necessary to filing an action or appeal, are arguably still good law. See Hiser v. 3 Franklin, 94 F.3d 1287, 1294 n.6 (9th Cir. 1996); Allen v. Sakai, 48 F.3d 1082, 1089–90 (9th Cir. 4 1995). See also Hebbe v. Pliler, 627 F.3d at 342-43. 5 To set forth a violation of the right of access to the courts, a prisoner must establish that he 6 or she has suffered an actual injury—a jurisdictional requirement that flows from the standing 7 doctrine and may not be waived. See Lewis, 518 U.S. at 349; Madrid, 190 F.3d at 996. An “actual 8 injury” is “actual prejudice with respect to contemplated or existing litigation, such as the 9 inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at 348 (citation & 10 internal quotation marks omitted); see also Hebbe, 627 F.3d at 342-43; Alvarez v. Hill, 518 F.3d 11 1152, 1155 n.1 (9th Cir. 2008) (explaining that “[f]ailure to show that a ‘non-frivolous legal claim 12 ha[s] been frustrated’ is fatal” to a claim for denial of access to legal materials) (citing Lewis, 518 13 U.S. at 353 & n.4); Madrid, 190 F.3d at 996. Delays in providing legal materials or assistance that 14 result in actual injury are “not of constitutional significance” if “they are the product of prison 15 regulations reasonably related to legitimate penological interests.” Lewis, 518 U.S. at 362. 16 Here, Plaintiff does not allege a cognizable access to courts claim. Plaintiff does not 17 contend he was denied access to the law library or his legal materials, nor does he allege any 18 interference with his ability to file an action in the state courts or in this Court. He has not 19 established he suffered an actual injury—his claim appears to be a disagreement with the trial 20 court’s ruling in his state court medical negligence action. 21 4. Substantive Due Process 22 The Ninth Circuit has held that “the Fourteenth Amendment substantively protects a 23 person’s rights to be free from unjustified intrusions to the body, to refuse unwanted medical 24 treatment and to receive sufficient information to exercise these rights intelligently.” Benson v. 25 Terhune, 304 F.3d 874, 884 (9th Cir. 2002) (citations omitted). In White v. Napoleon, which the 26 Ninth Circuit cited favorably in Benson, 304 F.3d at 884, the Third Circuit held that “[p]risoners 27 have a right to such information as is reasonably necessary to make an informed decision to 1 alternative treatments that can be made available in a prison setting.” 897 F.2d 103, 113 (3d Cir. 2 1990); see also Pabon v. Wright, 459 F.3d 241, 250 (2d Cir. 2006) (prisoners have “a liberty 3 interest in receiving such information as a reasonable patient would require in order to make an 4 informed decision as to whether to accept or reject proposed medical treatment”) (citing White, 5 897 F.2d at 113). 6 In his second claim for relief, Plaintiff has provided sufficient facts to state a cognizable 7 substantive due process claim. He alleges Dr. Griffith intentionally failed to read Plaintiff the 8 consent form, failed to inform him of the risks and side effects of the prostrate biopsy procedure, 9 and failed to inform him of the alternative medical options such as an MRI. Plaintiff also 10 contends he would have “100%” declined the procedure had he been made aware of the risks and 11 side effects and the medical alternatives. Benson v. Terhune, 304 F.3d at 884; White v. Napoleon, 12 897 F.2d at 113. 13 Additionally, as noted above, despite the conclusory nature of Plaintiff’s assertion that Dr. 14 Griffith acted under color of state law, liberally construing the second amended complaint, the 15 Court finds that Plaintiff has sufficiently alleged, at this stage of the proceedings, that the 16 defendant was acting under color of state law. 17 In sum, as to his first claim for relief, Plaintiff has failed to state a cognizable claim upon 18 which relief can be granted. The Court will recommend his first claim be dismissed. As to 19 Plaintiff’s second claim for relief, the Court will recommend the action proceed as to that claim 20 only. 21 IV. CONCLUSION AND RECOMMENDATIONS 22 For the reasons set forth above, the Court finds that Plaintiff’s second amended complaint 23 states a cognizable substantive due process claim against Defendant Griffith. However, Plaintiff’s 24 second amended complaint does not state any other cognizable claim against Defendant Griffith. 25 Given that Plaintiff has received to opportunity to amend (Docs. 11, 16), the Court finds that 26 further amendment would be futile. See Akhtar v. Mesa, 698 F.3d at 1212-13. 27 Accordingly, the Court RECOMMENDS that: 1 2. Plaintiff be permitted to proceed on his second claim for relief against Defendant 2 Griffith. 3 The Court DIRECTS the Clerk of the Court to assign a district judge to this action. 4 These Findings and Recommendations will be submitted to the United States District 5 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(1). Within 21 days of the date of 6 service of these Findings and Recommendations, Plaintiff may file written objections with the 7 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 8 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 9 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 10 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). 11 IT IS SO ORDERED. 12 13 Dated: April 12, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27