(PC) Nieves v. Allison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 Case No. 1:22-cv-01020-ADA-CDB (PC) 11 SANDI NIEVES, 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO 13 v. STATE A CLAIM 14 KATHLEEN ALLISON, (Doc. 21) 15 Defendant. FOURTEEN (14) DAY DEADLINE 16 17 Plaintiff Sandi Nieves is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action under 42 U.S.C. § 1983. Following the Court’s issuance of its first screening 19 order, on August 25, 2023, Plaintiff filed a first amended complaint against Kathleen Allison, 20 Secretary of CDCR, in her both her individual and official capacities. (Doc. 21.) The other 21 defendants named in Plaintiff’s original complaint were not included in the first amended 22 complaint, and, thus, are presumed to have been removed from this action. Otherwise, the first 23 amended complaint is substantively similar to the original complaint, alleging violations of the 24 Fifth Amendment for the abuse of power, fraud, excessive force, and taking of “real property” 25 without compensation; and fraud and excessive force in violation of the Fourteenth Amendment. 26 (Id.) Upon screening of the first amended complaint, the Court finds Plaintiff’s pleading fails to 27 state a claim upon which relief may be granted and must be dismissed pursuant to 28 U.S.C. §§ 1 complaint cannot be cured by amendment and therefore recommends dismissal of this action 2 with prejudice. 3 I. SCREENING REQUIREMENT 4 The Court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 6 The Court must dismiss a complaint or portion thereof if the prisoner raises claims that are 7 frivolous or malicious, fail to state a claim on which relief may be granted, or seek monetary 8 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)–(iii); 28 9 U.S.C. § 1915A(b). These provisions authorize the court to dismiss a frivolous in forma pauperis 10 complaint sua sponte. Neitzke v. Williams, 490 U.S. 319, 322 (1989). Dismissal based on 11 frivolousness is appropriate where the claim is “based on an indisputably meritless legal theory” 12 or “whose factual contentions are clearly baseless.” Id. at 327. The Court must dismiss a 13 complaint if it lacks a cognizable legal theory or fails to allege sufficient facts to support a 14 cognizable legal theory. O’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008) (citing Vaden v. 15 Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006)). 16 II. PLEADING REQUIREMENTS 17 A. Federal Rule of Civil Procedure 8(a) 18 A complaint must contain “a short and plain statement of the claim showing that the 19 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Rule 8(a)’s simplified pleading standard 20 applies to all civil actions, with limited exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 21 513 (2002). The statement must give the defendant fair notice of the plaintiff’s claims and the 22 grounds supporting the claims. Id. at 512. 23 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of 24 a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 25 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff 26 must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its 27 face.’” Id. (quoting Twombly, 550 U.S. at 570). Plausibility does not require probability, but it 1 U.S. at 556). A claim is plausible when the facts pleaded allow the court to make reasonable 2 inferences that the defendant is liable for wrongful conduct. Id. (quoting Twombly, 550 U.S. at 3 556). However, courts “are not required to indulge unwarranted inferences.” Metzler Inv. GMBH 4 v. Corinthian Colls., Inc., 540 F.3d 1049, 1064 (9th Cir. 2008). 5 The Court construes pleadings of pro se prisoners liberally and affords them the benefit 6 of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). This liberal 7 pleading standard applies to a plaintiff’s factual allegations but not to his legal theories. Neitzke, 8 490 U.S. at 330 n.9. Moreover, a liberal construction of the complaint may not supply essential 9 elements of a claim not pleaded by the plaintiff. Bruns v. Nat’l Credit Union Admin., 122 F.3d 10 1251, 1257 (9th Cir. 1997). The mere possibility of misconduct and facts merely consistent with 11 liability is insufficient to state a cognizable claim. Iqbal, 556 U.S. at 678; Moss v. U.S. Secret 12 Serv., 572 F.3d 962, 969 (9th Cir. 2009). Vague and conclusory allegations of official 13 misconduct are insufficient to withstand a motion to dismiss. Ivey v. Bd. of Regents of Univ. of 14 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 15 B. Linkage and Causation 16 Section 1983 provides a cause of action for the violation of constitutional or other federal 17 rights by persons acting under color of state law. See 42 U.S.C. § 1983. Section 1983 “is not 18 itself a source of substantive rights, but a method for vindicating federal rights elsewhere 19 conferred.” Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) (quoting Baker v. McCollan, 20 443 U.S. 137, 144 n.3 (1979)). 21 To state a claim under section 1983, a plaintiff must show a causal connection or link 22 between the actions of the defendants and the deprivation alleged to have been suffered by the 23 plaintiff. See Rizzo v. Goode, 423 U.S. 362, 373–75 (1976). The Ninth Circuit has held that a 24 government actor may be liable under section 1983, if he performs an affirmative act, participates 25 in another’s affirmative acts, or fails to perform an act which he is legally required to do that 26 causes the prisoner to suffer a deprivation of rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 27 1978) (citing Sims v. Adams, 537 F.2d 829 (5th Cir. 1976)). In addition to direct participation, a 1 knows or reasonably should know would cause others to inflict the constitutional injury.” 2 Preschooler II v. Clark Cnty. Sch. Bd. of Trustees, 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 3 Johnson, 588 F.2d at 743). 4 III. PLAINTIFF’S ALLEGATIONS1 5 At all relevant times, Plaintiff was housed at Central California Women’s Facility 6 (“CCWF”). On September 8, 2022, CDCR took Plaintiff’s JPay tablet and accessories without 7 compensation. (Doc. 21 at 3–4.) Plaintiff was forced to turn over her JPay tablet or face a Rules 8 Violation Report. Warden Pallarez, the warden of CCWF, asked Defendant Allison to allow 9 prisoners at CCWF to keep the JPay tablet pursuant to “attrition regulations,” but she denied the 10 request and changed the matrix to allow prisoners to have only one tablet, instead of one for 11 entertainment and a second one for communications. Plaintiff argues that the previous policy has 12 been restored and “we’re again allowed two tablets,” but this “proves her abuse of power.” (Id.) 13 The JPay kiosks were removed, so even if prisoners were allowed to keep their JPay tablets, they 14 would no longer serve as communications tablets. (Id. at 4.) 15 On June 30, 2022, shortly before 11:30 p.m., Plaintiff received an email through JPay 16 that prisoners could transfer paid content transferred to loaned GTL/ViaPath tablets. (Id.) 17 However, as of the filing of Plaintiff’s first amended complaint, this has not occurred. According 18 to Plaintiff, Defendant Allison also abused her power by promising incentives that were not 19 realized. 20 According to Plaintiff’s allegations regarding an unrelated lawsuit in state court, 21 GTL/ViaPath was required to end their contract with CDCR within thirty months. (Id.) Plaintiff 22 contends that transferring their contents now would be futile. Plaintiff states that the paperwork 23 given does not state the JPay tablets were part of a pilot program. Allegedly, CCWF is the only 24 prison that made inmates buy the JPay tablets for $120 as “‘real property’ to own.” (Id.) On a 25 daily basis, prisoners were “bombarded with pop-up advertisements via emails,” and Plaintiff 26 27 1 The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of the sua 1 purchased music, games, electronic stamps, 34 books, a keyboard, videos, photos, and emails. 2 Plaintiff states she would not have put such material on the tablet if she had known CDCR would 3 take away the JPay tablet within a few years of owning it. (Id.) Plaintiff alleges CDCR was 4 getting kickbacks for the advertising and indiscriminately forcing inmates to give up their 5 property without compensation constitutes fraud and violations of the Fifth and Fourteenth 6 Amendments. 7 Plaintiff sues Kathleen Allison,2 former Secretary of California Department of 8 Corrections and Rehabilitation (“CDCR”), in her official and individual capacities, alleging 9 violations of the Fifth Amendment Takings Clause and the Due Process Clause of the Fourteenth 10 Amendment, including the abuse of power, fraud, and excessive force. (Id. at 3.) As relief, 11 Plaintiff seeks compensatory damages and attorney’s fees and costs. 12 IV. DISCUSSION 13 A. Official v. Individual Capacity Claims 14 Plaintiff names Defendant Allison in both her official and individual capacities. To the 15 extent Plaintiff is seeking damages, the Eleventh Amendment bars suits for money damages in 16 federal court against state officials in their official capacity. Aholelei v. Dep’t of Pub. Safety, 488 17 F.3d 1144, 1147 (9th Cir. 2007). However, it does not bar an official capacity suit for prospective 18 relief, Wolfson v. Brammer, 616 F.3d 1045, 1065–66 (9th Cir. 2010); nor does it bar suit for 19 damages against state officials in their personal capacities. Hafer v. Melo, 502 U.S. 21, 30 (1991). 20 “Personal-capacity suits . . . seek to impose individual liability upon a government officer for 21 actions taken under color of state law.” Id. 22 A claim for prospective injunctive relief against a state official in his official capacity is 23 not barred by the Eleventh Amendment provided the official has authority to implement the 24 requested relief. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 92 (1989). The proper 25 defendant for injunctive relief in suit seeking implementation of CDCR policy is the CDCR 26 27 2 Jeff Macomber began serving as CDCR Secretary on December 28, 2022, replacing Kathleen Allison. Under Rule 25, when a public officer sued in an official capacity leaves office, “[t]he officer’s 1 Secretary in an official capacity. Rouser v. White, 707 F. Supp. 2d 1055, 1066 (E.D. Cal. 2010) 2 (citation omitted). 3 The allegations against Defendant indicate that she had the official power to implement 4 or modify CDCR policy regarding the issuance and possession of tablets by prisoners. However, 5 Plaintiff does not request injunctive relief against Defendant. Instead, Plaintiff seeks an award of 6 damages to compensate her for money spent on the JPay tablet, accessories, and contents; and 7 attorney’s fees and costs. The claim for damages may only be asserted against Defendant in her 8 individual capacity. Plaintiff does not allege personal involvement in any constitutional 9 deprivation by Defendant Allison sufficient to hold her liable for Plaintiff’s losses. The Court 10 informed Plaintiff in its first screening order that Plaintiff’s original complaint suffered from the 11 same deficiency. (Doc. 16 at 7.) The first amended complaint fails to state a claim for this 12 reason. 13 B. Fifth Amendment Takings Clause 14 Plaintiff reiterates her claim from the original complaint that Defendants violated the 15 Takings Clause of the Fifth Amendment, which provides, “private property [shall not] be taken 16 for public use, without just compensation.” U.S. Const. amend. V. This right is applicable to the 17 states through the Due Process Clause of the Fourteenth Amendment. Ward v. Ryan, 623 F.3d 18 807, 810 (9th Cir. 2010) (citing Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 19 160 (1980)). A plaintiff must allege that, among other things, her property was taken for a public 20 purpose. See Kelo v. City of New London, Conn., 545 U.S. 469, 477–80 (2005). The first 21 amended complaint indicates the confiscation of Plaintiff’s JPay tablet was due to a change in 22 CDCR policy rather than for public use. The Court informed Plaintiff in its first screening order 23 that Plaintiff’s original complaint suffered from the same deficiency. (Doc. 16 at 12.) Under 24 these circumstances, Plaintiff is unable to state a Fifth Amendment takings claim. 25 C. Fourteenth Amendment Due Process Clause 26 Plaintiff alleges the confiscation of her JPay tablet without compensation violated her 27 right to due process under the Fourteenth Amendment. Plaintiff does not appear to raise a facial 1 circumstances. Instead, Plaintiff challenges the policy as applied to her. A policy “may be held 2 constitutionally invalid as applied when it operates to deprive an individual of a protected right 3 although its general validity as a measure enacted in the legitimate exercise of state power is 4 beyond question.” Boddie v. Connecticut, 401 U.S. 371, 379 (1971), quoted in Atencio v. Allison, 5 No. 1:21-cv-00191-BAM (PC), 2021 WL 2982917, at *3 (E.D. Cal. July 15, 2021), F.&R. 6 adopted, 2021 WL 4803970 (E.D. Cal. Oct. 14, 2021). To support an “as applied” challenge, 7 Plaintiff must show that her individual circumstances make the general application of the new 8 policy unconstitutional. See Doe v. United States, 419 F.3d 1058, 1063 (9th Cir. 2005). 9 The Fourteenth Amendment protects prisoners from being deprived of property without 10 due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The Due Process Clause of the 11 Fourteenth Amendment contains both a procedural and substantive component. Washington v. 12 Glucksberg, 521 U.S. 702, 720–21 (1997). “Procedural due process imposes constraints on 13 governmental decisions which deprive individuals of ‘liberty’ or ‘property interests’ within the 14 meaning of the Due Process clause.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). 15 “[G]overnmental decisions . . . not directed at one or a few individuals do not give rise to the 16 constitutional procedural due process requirements of individual notice and hearing; general 17 notice as provided by law is sufficient.” Halverson v. Skagit Cnty., 42 F.3d 1257, 1260 (9th Cir. 18 1994). Further, to state a procedural due process claim, a plaintiff must establish “a legitimate 19 claim of entitlement” to the relief sought. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 463 20 (1989). 21 The substantive component of the Fourteenth Amendment Due Process Clause “forbids 22 the government from depriving a person of life, liberty, or property in such a way that . . . 23 interferes with rights implicit in the concept of ordered liberty,” regardless of what type of 24 process is first given. Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 996 (9th Cir 2007). State 25 regulations give rise to a liberty interest protected by the Due Process Clause of the federal 26 constitution only if those regulations pertain to “freedom from restraint” that “imposes atypical 27 and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin 1 rationally related to a legitimate government interest. Washington v. Glucksberg, 521 U.S. 702, 2 722 (1997). 3 “An authorized, intentional deprivation of property is actionable under the Due Process 4 Clause.” Christ v. Hartley, No. 1:11-cv-00705-AWI-DLB, 2013 WL 127737, at *3 (E.D. Cal. 5 2013) (citing Hudson v. Palmer, 468 U.S. 517, 532 (1984) (citations omitted)). “An authorized 6 deprivation is one carried out pursuant to established state procedures, regulations, or statutes.” 7 Id. (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982)). Therefore, an agency 8 violates the Due Process Clause “when it prescribes and enforces forfeitures of property 9 ‘[w]ithout underyling [s]tatutory authority and competent procedural protections. Nev. Dep’t of 10 Corr. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (quoting Vance v. Barrett, 345 F.3d 1083, 11 1090 (9th Cir. 2003)). 12 Authorized deprivations are permissible if carried out pursuant to a regulation that is 13 reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 89 (1987). 14 Legitimate, non-punitive governmental objectives include maintaining security, ensuring a 15 prisoner’s appearance in court, and managing the detention facility effectively. See Jones v. 16 Blanas, 393 F.3d 918, 932 (9th Cir. 2014) (citing Hallstrom v. City of Garden City, 991 F.2d 17 1473, 1484 (9th Cir. 1993)). 18 An unauthorized, “negligent or intentional deprivation of a prisoner’s property fails to 19 state a due process claim under section 1983 if the state has an adequate post-deprivation 20 remedy.” Barnett v. Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (citing Hudson, 468 U.S. at 21 533). The Government Claims Act, Cal. Gov’t Code §§ 810–996.6, provides an adequate post- 22 deprivation remedy for unauthorized loss of property. See Lopez v. Dion, 422 F. App’x 590, 591 23 (9th Cir. 2011) (citing Barnett, 31 F.3d at 816–17). 24 Here, the taking of Plaintiff’s JPay tablet was authorized and intentional; therefore, due 25 process concerns are implicated. Ordinarily, due process requires notice and some kind of 26 hearing prior to the deprivation of a property interest. But the Ninth Circuit has specifically 27 rejected the idea that the Due Process Clause requires prior notice before enacting and enforcing 1 directed at one or a few individuals do not give rise to the constitutional due process 2 requirements of individual notice and hearing; general notice as provided is sufficient.” Rhoden 3 v. Dep’t of State Hosps., No. 1:18-cv-00101-NONE-SAB (PC), 2020 WL 5737019, at *12 (E.D. 4 Cal. Mar. 20, 2020) (quoting Halverson, 42 F.3d at 1260 (9th Cir. 1995)), F&R adopted, 2020 5 WL 4048489. Here, Plaintiff’s allegations reflect that she had general notice of the JPay 6 repurposing plan in advance of relinquishing her tablet (see Doc. 21 at 3-4) and given an 7 adequate opportunity to comply with it.” Greene, 648 F.3d at 1019 (citing Wolff v. McDonnell, 8 418 U.S. 539, 556 (1974)) 9 Prisoners generally have a protected interest in their personal property. Hansen v. May, 10 502 F.2d 728, 730 (9th Cir. 1974). However, California law provides for regulation of allowable 11 personal property of prison inmates. Cal. Code Regs. tit. 15 § 3190. “[T]here is a difference 12 between the right to own property and the right to possess property while in prison.’” Velasquez 13 v. Ahlin, No. 1:18-cv-00053-LJO-SAB (PC), 2018 WL 1959541, at *8 (E.D. Cal. Apr. 25, 2018) 14 (quoting Searcy v. Simmons, 299 F.3d 1200, 1229 (10th Cir. 2022)). 15 Plaintiff does not have a protected property interest in possessing her tablet and 16 accessories while incarcerated at CCWI. 17 Plaintiff cannot allege a fundamental right in possession of a particular type of electronic device. Plaintiff does not have a fundamental right to possess a SD card 18 for a music player. Deprivation of this type of inmate property is not a 19 fundamental right. Regulations enacted to protect institutional security from potential breaches that electronic communications devices pose within the 20 institutions are permissible regulations by the demanding substantive due process 21 legal standards. 22 Atencio v. Allison, No. 1:21-cv-00191-BAM (PC), 2021 WL 2982917, at *4 (E.D. Cal. 2021); 23 see Rhoden, 2020 WL 5737019, at *2, 11 (finding civil detainee had failed to state a due process 24 claim because he had no protected liberty interest to own “electronic and storage devices 25 (personal laptop computer, tablet, other electrical devices . . . )”); Osaki v. San Bernardino Cnty. 26 Sheriff Dep’t, 2023 WL 4291851, at *8 (C.D. Cal. May 26, 2023) (finding that inmate did not 27 have a protected right to possess phones, tablets, and keys allegedly seized improperly while incarcerated). See Cerniglia v. Price, No. 17-cv-00753-AWI-JLT (PC), 2017 WL 4865452, 1 at *3–4 (E.D. Cal. Oct. 27, 2017) (“No court has found that prisoners have a constitutional right 2 to possess personal computers or items that are similar to personal computers which are capable 3 of accessing the internet in their cells.”) 4 Without a liberty interest in the JPay tablet and its contents, Plaintiff is unable to state a 5 claim for the denial of due process under the Fourteenth Amendment. 6 D. Excessive Force 7 Plaintiff has alleged the use of excessive force as part of her claims raised under the Fifth 8 and Fourteenth Amendments. However, claims of excessive force fall within the Eighth 9 Amendment’s prohibition on “cruel and unusual punishments.” U.S. Const. amend. VIII. “It is 10 undisputed that the treatment a prisoner receives in prison and the conditions under which he is 11 confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 12 25, 31 (1993). “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment 13 places restraints on prison officials, who may not . . . use excessive physical force against 14 prisoners.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). The “unnecessary and wanton 15 infliction of pain” on prisoners “constitutes cruel and unusual punishment.” Whitley v. Albers, 16 475 U.S. 312, 319 (1986) (internal quotation marks and citation omitted). “Being violently 17 assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses 18 against society.” Farmer, 511 U.S. at 834 (internal quotation marks and citation omitted). 19 A correctional officer engages in excessive force in violation of the Eighth Amendment if 20 he (1) uses excessive and unnecessary force under all the circumstances; and (2) harms an inmate 21 for the purpose of causing harm, rather than in a good-faith effort to maintain security. Hoard v. 22 Hartman, 904 F.3d 780, 788 (9th Cir. 2018); see Hudson v. McMillian, 503 U.S. 1, 6–7 (1992) 23 (“[W]henever prison officials stand accused of using excessive physical force . . . the core 24 judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore 25 discipline, or maliciously and sadistically to cause harm.”). When determining whether the force 26 was excessive, the Court looks to the extent of the injury suffered by an inmate; the need for use 27 of force; the relationship between the need for force and the amount of force used; whether 1 prison officials reasonably perceived the threat as requiring the use of force; and whether 2 officials made any efforts to use a less forceful response. Hudson, 503 U.S. at 7 (quoting 3 Whitley, 475 U.S. at 321). 4 In this case, the factual allegations make no mention of physical contact or the use of any 5 force to confiscate Plaintiff’s tablet. As articulated in the Court’s first screening order with 6 respect to Plaintiff’s original complaint (Doc. 16 at 13), the amended complaint fails to state a 7 claim for the use of excessive force and cruel and unusual punishment in violation of the Eighth 8 Amendment. 9 E. Fraud 10 Similar to her pleading in the original complaint, Plaintiff alleges Defendant used fraud to 11 violate Plaintiff’s constitutional rights. Fraud is a state law claim. Violation of state tort law, state 12 regulations, rules and policies of the CDCR, or other state law is not sufficient to state a claim for 13 relief under section 1983. Ramirez v. CDCR, No. 1:19-cv-01688-GSA-PC, 2020 WL 6158145, at 14 *5 (E.D. Cal. Oct. 21, 2020)). California’s Government Claims Act requires that a claim against 15 the State or its employees “relating to a cause of action for death or for injury to person” be 16 presented to the Department of General Services’ Government Claims Program no more than six 17 months after the cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2. Presentation of a 18 written claim, and action on or rejection of the claim, are conditions precedent to suit. State v. 19 Superior Ct. of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1245 (Cal. 2004). To state a tort claim 20 against a public entity or employee, a plaintiff must allege compliance with the Government 21 Claims Act. Id. 22 Plaintiff seeks a full refund of all money she spent on the JPay tablet and its purchased 23 contents. The proper means for her to seek reimbursement for personal property is first to submit 24 a claim with the state before filing suit in federal district court. Plaintiff has not done so, and her 25 claim for fraud must be dismissed. 26 V. CONCLUSION 27 After carefully considering Plaintiff’s allegations, the Court finds that the first amended 1 | alleged any facts that can support claims of constitutional violations by Defendants. Dismissal of 2 || a pro se complaint without leave to amend is proper only if it is “absolutely clear that no 3 || amendment can cure the defect.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) 4 | (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012)); see Cervantes v. 5 || Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (“Although leave to amend 6 | should be given freely, a district court may dismiss without leave where a plaintiff's proposed 7 || amendments would fail to cure the pleading deficiencies and amendment would be futile.”). 8 Based upon the facts alleged and Plaintiff’s failure to remedy the same or near same 9 | deficiencies identified in the Court’s first screening order, the Court further finds that the 10 | deficiencies cannot be cured by amendment, and further leave to amend would be futile. See 11 | Lopez, 203 F.3d at 1130; Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). 12 Accordingly, it is hereby RECOMMENDED: 13 1. The Court DISMISS this action WITH PREJUDICE for failure to state a 14 claim upon which relief can be granted; and 15 2. Direct the Clerk of Court to close the case. 16 These Findings and Recommendations will be submitted to the United States District 17 | Judge assigned to the case pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen 18 | (14) days from the date of service of these Findings and Recommendations, Plaintiff may file 19 | written objections with the Court. The document should be titled, “Objections to Magistrate 20 | Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections 21 | within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 22 | 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 23 | 1991)). 24 | IT IS SOORDERED. * Dated: _ September 13, 2023 | ) Ww Vv 26 UNITED STATES MAGISTRATE JUDGE 27 28 19