(PC) Mayberry v. Cates ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MICHAEL CHARLES MAYBERRY, Case No.: 1:22-cv-1177-BAM (PC) 11 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE 12 v. FINDINGS AND RECOMMENDATIONS TO 13 BRIAN CATES, et al., DISMISS ACTION FOR FAILURE TO STATE A CLAIM 14 Defendants. (ECF No. 9) 15 FOURTEEN (14) DAY DEADLINE 16 Plaintiff Michael Charles Mayberry (“Plaintiff”) is a state prisoner proceeding pro se and 17 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The Court screened 18 Plaintiff’s complaint and granted leave to amend. Plaintiff’s first amended complaint, filed on 19 November 10, 2022, is currently before the Court for screening. (ECF No. 9.) 20 I. Screening Requirement and Standard 21 The Court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 23 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 24 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 25 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 26 A complaint must contain “a short and plain statement of the claim showing that the 27 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 28 1 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 2 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 3 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 4 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 5 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 6 To survive screening, Plaintiff’s claims must be facially plausible, which requires 7 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 8 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 9 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 10 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 11 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 12 II. Plaintiff’s Allegations 13 Plaintiff is currently housed at California Correctional Institution at Tehachapi, California where the events in the complaint are alleged to have occurred. Plaintiff names the following 14 defendants: (1) Brian Cates, Warden, (2) Jane Doe, correctional officer 2/W, and (3) John Doe 15 #1, correctional officer 2/W, and (4) John Doe #2, correctional officer 3/W. 16 In claim 1, Plaintiff alleges as follows. In 1/23/22, Plaintiff was placed in Administrative 17 Segregation (“Ad-Seg”) due to testing positive with Covid 19. Before leaving to Ad-Seg Facility 18 A from Facility D, all of Plaintiff’s property was inventoried and put in boxes, and placed in the 19 transportation vehicle. When Plaintiff arrived at Fac. A Ad-Seg, Plaintiff saw that the cell was 20 filthy with trash littering the bunks and floor. The toilet had urine stains on the rim and stains on 21 the floor. The cell had been occupied by prior Covid 19 positive inmates. Plaintiff asked an 22 unknown correctional officer, who did not have a name tag on so that that person could not be 23 identified, for disinfecting cleaning products. The correctional officer just closed the door and 24 walked away. The next morning, Plaintiff asked Jane Doe and John Doe #1 for cleaning and 25 disinfectant products. Both just walked away and never brought any cleaning or disinfecting 26 products so Plaintiff could clean the cell. Plaintiff asked all the Jane Doe and John Does for the 27 basic necessities of toothpaste, toothbrush, soap, shower shoes, razor, and cleaning products. The 28 1 officers would not give any of these necessities. Plaintiff asked them for his property which 2 contained these necessities, but each time Plaintiff requested the items, the correctional officers 3 would walk away ignoring Plaintiff’s requests. 4 On 1/23/22, Plaintiff asked for toilet paper but that request got ignored. The inmate in the 5 adjacent cell gave Plaintiff some toilet paper for a single use. When Plaintiff again asked for his 6 property, which he would have items that are permissible and do not pose a safety issue, Jane Doe 7 and John Doe #1 said that if Plaintiff kept bugging them for his property, they will make sure it 8 gets lost. 9 When showers were offered, Plaintiff asked for his shower shoes to which John and Jane 10 Does told Plaintiff that if he wants to shower, it will have to be with what Plaintiff has – no 11 shower shoes. It is mandatory to go to the shower, whether you want to shower or not and 12 Plaintiff had to stand in the shower stall with no shower shoes for the duration of the shower time 13 with no soap and no shoes which caused Plaintiff to contract athlete’s foot. “Never in the course of Plaintiff’s stay in quarantin [sic] in Ad-Seg was plaintiff ever given any basic necessities.” 14 It is the responsibility of Brian Cates, as Warden, to ensure that all staff follow the letter 15 of the law and all stated and federal policies and procedures. Instead, he swept the issue 16 under the rug to protect his subordinates. Witnesses were not interviewed under oath. 17 In claim 2, Plaintiff alleges as follows. While Plaintiff was housed in Ad-Seg Fac. A for 18 testing positive for Covid, Plaintiff “continually asked Jane and John Does to let me speak to a 19 Psychiatrist as I was previously under the care of CCCMS (Correctional Clinical Case 20 Management System).” Knowing his triggers, Plaintiff asked to speak to a 21 Psychiatrist/Psychologist. When the clinical nurse would come by, Plaintiff would ask to see a 22 Psychiatrist/Psychologist, and she would just keep walking and taking temperatures. The Jane 23 Doe and John Doe #1 correctional officers would just laugh at Plaintiff’s request. Plaintiff was 24 not given the opportunity to see, speak or counsel with a Psychiatrist/Psychologist during the time 25 he was in Ad-Seg. This denial triggered depression “in a low state,” since he could not speak 26 with family or have his property just because he had Covid. 27 Warden Brian Cates is responsible for the Mental Health of all inmates. No log is kept of 28 1 an inmate’s request to see mental health care. Witnesses were not interviewed under oath. 2 Warden Cates hid his subordinates violations by claiming that they did not violate policies or 3 procedures. 4 In claim 3, Plaintiff alleges as follows. While quarantined in Ad-Seg, Plaintiff continually 5 asked Jane Doe and John Doe #1 for his religious property which was inventoried and boxed in 6 Fac. D. The property Plaintiff was requesting was approved property and posed no threat to the 7 safety and security of the institution or inmates. His religious property was denied to him. As a 8 Muslim, Plaintiff is required to pray multiple times a day in clean environment, use Dhikr beads, 9 use a prayer rug and to maintain his purity (from getting contaminated by any products on the 10 floor). He is also supposed to read the Holy Qur’an and use oils after purification with the 11 pleasing aroma before Allah. Plaintiff’s request for his religious property went unanswered by 12 Jane Doe and John Doe #1. They told Plaintiff that if he continues to bug them for his property, 13 they will make sure his property gets lost. Throughout his housing in Ad-Seg, Plaintiff was not given his religious property or regular property. John Doe #2 told Plaintiff that it is not John Doe 14 #2’s job to pass out property. 15 Warden Brian Cates is responsible to ensure that religious freedoms are not violated. 16 Witnesses were not interviewed under oath. Other religions had their bible, rosary beads and 17 crosses. But as a Muslim, Plaintiff was not allowed his Dhikr beads or prayer rug. 18 Plaintiff seeks compensatory and punitive damages. Plaintiff also seeks a change in 19 procedures during Covid such as change in quarantine procedures to allow inmates to converse 20 with psychologist within 24 hours of arrival and provide inmates with approved property within 21 24 hours of arrival in quarantine. 22 III. Discussion 23 A. Federal Rule of Civil Procedure 8 24 Pursuant to Rule 8, a complaint must contain “a short and plain statement of the claim 25 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed factual allegations 26 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 27 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must 28 1 set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on 2 its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual allegations 3 are accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556–57; Moss, 4 572 F.3d at 969. 5 Here, Plaintiff’s complaint is short, but it is not a plain statement of his claims showing 6 that he is entitled to relief. Plaintiff’s allegations are conclusory and do not state what happened, 7 when it happened, or which defendant was involved. Despite being informed he must do so, 8 Plaintiff has not stated the factual allegations regarding the duration of his confinement in Ad- 9 Seg. 10 B. Supervisory Liability 11 To the extent Plaintiff seeks to hold Warden Cates, or any defendant, liable based solely 12 upon their supervisory role, he may not do so. Liability may not be imposed on supervisory 13 personnel for the actions or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th 14 Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 15 297 F.3d 930, 934 (9th Cir. 2002). “A supervisor may be liable only if (1) he or she is personally 16 involved in the constitutional deprivation, or (2) there is a sufficient causal connection between 17 the supervisor’s wrongful conduct and the constitutional violation.” Crowley v. Bannister, 734 18 F.3d 967, 977 (9th Cir. 2013) (citation and quotation marks omitted); accord Lemire v. Cal. Dep’t 19 of Corrs. & Rehab., 726 F.3d 1062, 1074–75 (9th Cir. 2013); Lacey v. Maricopa Cty., 693 F.3d 20 896, 915–16 (9th Cir. 2012) (en banc). “Under the latter theory, supervisory liability exists even 21 without overt personal participation in the offensive act if supervisory officials implement a 22 policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving 23 force of a constitutional violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 24 642, 646 (9th Cir. 1989)) (internal quotation marks omitted). 25 Plaintiff does not allege that Warden Cates directly participated in any constitutional 26 violation. Plaintiff seeks to impose liability based upon Warden Cates position as Warden and 27 responsible for all actions at the institution. However, there is no respondeat superior liability 28 1 under §1983. Plaintiff also does not allege that Warden Cates implemented a policy so deficient 2 that it was a repudiation of his constitutional rights. At most, Plaintiff alleges that correctional 3 officers ignored his requests but other inmates, such as those who had bibles and rosaries were 4 permitted their property. 5 C. Eighth Amendment 6 1. Denial of Medical Care 7 A prisoner’s claim of inadequate medical care constitutes cruel and unusual punishment in 8 violation of the Eighth Amendment where the mistreatment rises to the level of “deliberate 9 indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 10 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate 11 indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure 12 to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and 13 wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096. 14 A defendant does not act in a deliberately indifferent manner unless the defendant “knows 15 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 16 837 (1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609 17 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is 18 shown where there was “a purposeful act or failure to respond to a prisoner’s pain or possible 19 medical need” and the indifference caused harm. Jett, 439 F.3d at 1096. In applying this 20 standard, the Ninth Circuit has held that before it can be said that a prisoner’s civil rights have 21 been abridged, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ 22 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter 23 Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105–06). Even gross 24 negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood 25 v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 26 Plaintiff fails to state a cognizable Eighth Amendment claim. Plaintiff fails to identify a 27 serious medical need. Plaintiff states he was depressed on 1/23/22, but there are no facts as to the 28 1 duration of his confinement in Ad-seg and his symptoms such that the Court may determine if 2 Plaintiff states a serious medical need. Further, Plaintiff fails to allege facts that each of the 3 defendants knew of and disregarded an excessive risk to inmate health or safety. Plaintiff has been 4 unable to cure this deficiency. 5 2. Conditions of Confinement 6 To state an Eighth Amendment claim, Plaintiff must satisfy both the objective and 7 subjective components of a two-part test. See Wilson v. Seiter, 501 U.S. 294, 298–99 (1991); 8 Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002). First, he must allege Defendants deprived 9 him of the “ ‘minimal civilized measure of life's necessities.’ ” Frost v. Agnos, 152 F.3d 1124, 10 1128 (9th Cir. 1998) (quoting Wilson, 501 U.S. at 304). When determining whether an alleged 11 deprivation is objectively sufficiently serious to support an Eighth Amendment claim, the court 12 must consider the circumstances, nature, and duration of the deprivation. Johnson v. Lewis, 217 13 F.3d 726, 731–32 (9th Cir. 2000). The “subjection of a prisoner to lack of sanitation that is severe or prolonged can constitute an infliction of pain within the meaning of the Eighth Amendment.” 14 Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995). 15 Second, Plaintiff must allege facts sufficient to plausibly show each Defendant he seeks to 16 hold liable had a “sufficiently culpable mind.” Wilson, 501 U.S. at 297. “In prison-conditions 17 cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Farmer v. 18 Brennan, 511 U.S. 825, 834 (1994) (citation omitted). That is, that the official must “kn[ow] of 19 and disregard[ ] an excessive risk to inmate health or safety[.]” Id. at 837. 20 Plaintiff's allegation that he was deprived of cleaning supplies and shower sandals does 21 not rise to the level of a constitutional violation. Such temporarily unpleasant conditions of 22 confinement do not rise to the level of constitutional violations. See Anderson v. County of Kern, 23 45 F.3d 1310 (9th Cir. 1995), citing Hoptowit v. Ray, 682 F.2d 1237, 1258 (9th Cir. 1982) 24 (abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995)) (in evaluating challenges 25 to conditions of confinement, length of time the prisoner must go without basic human needs may 26 be considered). To be cognizable, temporary conditions of confinement must be severe or 27 prolonged. “[R]outine discomfort inherent in the prison setting” does not rise to the level of a 28 1 constitutional violation. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). Indeed, despite 2 being advised that Plaintiff must state the duration of any deprivation, Plaintiff fails to state how 3 long he was deprived of shower sandals, cleaning supplies and other necessities. 4 In addition, to state a claim for violation of the Eighth Amendment, the plaintiff must 5 allege facts sufficient that each prison official knew of and disregarded a substantial risk of 6 serious harm to the plaintiff. Plaintiff has been unable to cure these deficiencies. 7 D. First Amendment Right to Free Exercise of Religion 8 “The First Amendment, applicable to state action by incorporation through the Fourteenth 9 Amendment, prohibits government from making a law prohibiting the free exercise [of religion]. 10 The Supreme Court has repeatedly held that prisoners retain the protections of the First 11 Amendment. A prisoner's right to freely exercise his religion, however, is limited by institutional 12 objectives and by the loss of freedom concomitant with incarceration.” Hartmann v. California 13 Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (alteration in original) (citations and internal quotation marks omitted). “‘To ensure that courts afford appropriate deference to 14 prison officials,’ the Supreme Court has directed that alleged infringements of prisoners’ free 15 exercise rights be ‘judged under a ‘reasonableness’ test less restrictive than that ordinarily applied 16 to alleged infringements of fundamental constitutional rights.’” Jones v. Williams, 791 F.3d 1023, 17 1032 (9th Cir. 2015) (quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)). “The 18 challenged conduct ‘is valid if it is reasonably related to legitimate penological interests.’ ” Id. 19 (quoting O'Lone, 482 U.S. at 349). 20 “To merit protection under the free exercise clause of the First Amendment, a religious 21 claim must satisfy two criteria. First, the claimant's proffered belief must be sincerely held; the 22 First Amendment does not extend to so-called religions which ... are obviously shams and 23 absurdities and whose members are patently devoid of religious sincerity. Second, the claim must 24 be rooted in religious belief, not in purely secular philosophical concerns.” Malik v. Brown, 16 25 F.3d 330, 333 (9th Cir. 1994) (alteration in original) (citations and internal quotation marks 26 omitted), supplemented, 65 F.3d 148 (9th Cir. 1995); see also Shakur v. Schriro, 514 F.3d 878, 27 884-85 (9th Cir. 2008) (noting the Supreme Court's disapproval of the “centrality” test and 28 1 finding that the “sincerity” test in Malik determines whether the Free Exercise Clause applies). 2 Additionally, “[a] person asserting a free exercise claim must show that the government 3 action in question substantially burdens the person's practice of her religion.” Jones, 791 F.3d at 4 1031. “A substantial burden ... place[s] more than an inconvenience on religious exercise; it must 5 have a tendency to coerce individuals into acting contrary to their religious beliefs or exert 6 substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Id. at 1031- 7 32 (alterations in original) (citation and internal quotation marks omitted). 8 Plaintiff fails to state a cognizable claim for denial of religious freedom. To the extent 9 that Plaintiff asserts a First Amendment claim against any Defendant, such claim fails because 10 Plaintiff does not allege any facts that these Defendants ever acted to deprive Plaintiff of his right 11 to exercise his religious beliefs or placed a substantial burden on his religious exercise. Plaintiff 12 does not allege that any Defendant otherwise had any authority to ensure Plaintiff's right to 13 practice his religion or ability to retrieve Plaintiff’s property. Moreover, Plaintiff does not allege that his religious beliefs are sincerely held, the duration of any deprivation, or that housing in Ad- 14 Seg substantially burdened his religious exercise. Plaintiff has been unable to cure this deficiency. 15 E. Failure to Investigate 16 To the extent Plaintiff alleges that Defendant Cates inadequately investigated Plaintiff's 17 claims by failing to obtain witness sworn testimony, that is not a basis for a plausible § 1983 18 claim. Baker v. Beam, 2019 WL 1455321, at *6 (E.D. Cal. 2019). To the degree Plaintiff is trying 19 to hold the individuals or others liable for an independent, unspecified constitutional violation 20 based upon an allegedly inadequate investigation, there is no such claim. See Gomez v. Whitney, 21 757 F.2d 1005, 1006 (9th Cir. 1985) (per curiam) (“[W]e can find no instance where the courts 22 have recognized inadequate investigation as sufficient to state a civil rights claim unless there was 23 another recognized constitutional right involved.”); Page v. Stanley, 2013 WL 2456798, at *8–9 24 (C.D. Cal. June 5, 2013) (dismissing Section 1983 claim alleging that officers failed to conduct 25 thorough investigation of plaintiff's complaints because plaintiff “had no constitutional right to 26 any investigation of his citizen's complaint, much less a ‘thorough’ investigation or a particular 27 outcome”); Tirado v. Santiago, No. 1:22-CV-00724 BAM PC, 2022 WL 4586294, at *5 (E.D. 28 1 Cal. Sept. 29, 2022), report and recommendation adopted, No. 1:22-CV-00724 JLT BAM PC, 2 2022 WL 16748838 (E.D. Cal. Nov. 7, 2022) (no constitutional claim for failing to investigate an 3 appeal). 4 F. Title 15 and Policy Violation 5 To the extent that any Defendant has not complied with applicable state statutes or prison 6 regulations for disclosure of information, these deprivations do not support a claim under § 1983. 7 Section 1983 only provides a cause of action for the deprivation of federally protected rights. See 8 e.g., Nible v. Fink, 828 Fed. Appx. 463 (9th Cir. 2020) (violations of Title 15 of the California 9 Code of Regulations do not create private right of action); Nurre v. Whitehead, 580 F.3d 1087, 10 1092 (9th Cir. 2009) (section 1983 claims must be premised on violation of federal constitutional 11 right); Prock v. Warden, No. 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at *11–12 (E.D. Cal. 12 Oct. 8, 2013) (noting that several district courts have found no implied private right of action 13 under title 15 and stating that “no § 1983 claim arises for [violations of title 15] even if they occurred.”); Parra v. Hernandez, No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. Cal. 14 Nov. 13, 2009) (granting motion to dismiss prisoner's claims brought pursuant to Title 15 of the 15 California Code of Regulations); Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW (PC), 16 2009 WL 1211372, at *9 (E.D. Cal. May 1, 2009) (holding that there is no private right of action 17 under Title 15 of the California Code of Regulations); Tirado v. Santiago, No. 1:22-CV-00724 18 BAM PC, 2022 WL 4586294, at *5 (E.D. Cal. Sept. 29, 2022), report and recommendation 19 adopted, No. 1:22-CV-00724 JLT BAM PC, 2022 WL 16748838 (E.D. Cal. Nov. 7, 2022). 20 G. Injunctive Relief 21 Plaintiff appears to seek injunctive relief in that he requests changes to policies and 22 procedures. Requests for prospective relief are limited by 18 U.S.C. § 3626(a)(1)(A) of the 23 Prison Litigation Reform Act [“PLRA”], which requires that the Court find the “relief [sought] is 24 narrowly drawn, extends no further than necessary to correct the violation of the Federal right, 25 and is the least intrusive means necessary to correct the violation of the Federal right.” In cases 26 brought by prisoners involving conditions of confinement, any injunction “must be narrowly 27 drawn, extend no further than necessary to correct the harm the court finds requires preliminary 28 1 relief, and be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2). 2 Moreover, where, as here, “a plaintiff seeks a mandatory preliminary injunction that goes beyond 3 maintaining the status quo pendente lite, ‘courts should be extremely cautious’ about issuing a 4 preliminary injunction and should not grant such relief unless the facts and law clearly favor the 5 plaintiff.” Committee of Central American Refugees v. I.N.S., 795 F.2d 1434, 1441 (9th Cir. 6 1986), quoting Martin v. International Olympic Committee, 740 F.2d 670, 675 (9th Cir. 1984). 7 The injunctive relief sought in this action is not narrowly drawn, and appears to extend 8 much further than necessary to correct the harm identified, particularly as it applies to institutions 9 where Plaintiff is not housed and to inmates who are not parties to this action. 10 IV. Conclusion and Conclusion and Recommendation 11 For the reasons discussed, the Court finds that Plaintiff has failed to state a cognizable 12 claim for relief. Despite being provided with the relevant legal standards, Plaintiff has been 13 unable to cure the deficiencies in his complaint. Further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 14 Accordingly, the Court HEREBY DIRECTS the Clerk of the Court to randomly assign a 15 district judge to this action. 16 Further, for the reasons stated above, IT IS HEREBY RECOMMENDED that this action 17 be dismissed for failure to state a cognizable claim upon which relief may be granted. 18 These Findings and Recommendation will be submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 20 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 21 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 22 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 23 /// 24 /// 25 /// 26 /// 27 /// 28 1 specified time may result in the waiver of the “right to challenge the magistrate’s factual 2 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 3 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. 6 Dated: December 21, 2022 /s/ Barbara A. McAuliffe _ 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28