(PC) Figueroa v. Clark. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN FIGUEROA, Case No. 1:22-cv-00916-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 CLARK, et al., FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITH PREJUDICE, FOR 15 Defendants. FAILURE TO STATE A CLAIM, FAILURE TO OBEY COURT ORDER, AND FAILURE 16 TO PROSECUTE 17 (ECF Nos. 5, 7, 9) 18 FOURTEEN (14) DAY DEADLINE 19 20 I. Background 21 Plaintiff Ruben Figueroa (“Plaintiff”) is a former state prisoner proceeding pro se and in 22 forma pauperis in this civil rights action under 42 U.S.C. § 1983. 23 On August 25, 2022, the Court issued a screening order granting Plaintiff leave to file a 24 first amended complaint or a notice of voluntary dismissal within thirty (30) days. (ECF No. 5.) 25 The Court expressly warned Plaintiff that the failure to comply with the Court’s order would 26 result in a recommendation for dismissal of this action, with prejudice, for failure to obey a court 27 order and for failure to state a claim. (Id. at 21.) Following two extensions of time, Plaintiff’s 28 first amended complaint or notice of voluntary dismissal was due on or before December 27, 1 2022. (ECF Nos. 7, 9.) The deadline has expired, and Plaintiff has failed to file an amended 2 complaint or otherwise communicate with the Court. 3 II. Failure to State a Claim 4 A. Screening Requirement 5 The Court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 7 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 8 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 9 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 10 A complaint must contain “a short and plain statement of the claim showing that the 11 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 12 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 14 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 15 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 16 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 17 To survive screening, Plaintiff’s claims must be facially plausible, which requires 18 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 19 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 20 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 21 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 22 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 23 B. Plaintiff’s Allegations 24 Plaintiff is currently out of custody. The events in the complaint are alleged to have 25 occurred while Plaintiff was housed at California State Prison in Corcoran, California 26 (“Corcoran”). Plaintiff names the following defendants: (1) Ken Clark, Warden; (2) Paul Silva, 27 Head Supervisor of Corcoran Prison Industry Authority for Diary Milk Processing Plant (“PIA- 28 Dairy”); (3) John Doe, “main boss” at PIA-Dairy; (4) “Pedro” John Doe, assistant main boss at 1 the PTA-Dairy; (5) John Doe, white male, new assistant head boss; (6) John Doe, Facility 3C 2 doctor for Corcoran; (7) Prison Industry Authority Dairy Milk Plant, unknown entity; (8) Susan 3 Doherty, Facility 3C registered nurse; (9) Linda Ortega, Facility 3C registered nurse; and 4 (10) Adrian Jaques, Facility 3C LVN nurse. The individuals are sued in their individual 5 capacities, and the Prison Industry Authority Dairy Milk Plant is sued in its individual and official 6 capacities. 7 Plaintiff alleges hazardous and unsafe working prison conditions and denial of medical 8 care in violation of the Eighth Amendment and the Fourteenth Amendment.1 Plaintiff alleges as 9 follows: 10 From June 2019 forward, Plaintiff got a job working at the PTA-Dairy milk processing 11 plant at Corcoran. After working for a few months, from February 2020 through July 2022 [sic], 12 Plaintiff gave notice to supervisors Joe2 and Pedro that the air pump machine was broken and did 13 not have a gasket on the lid. The air pump machine is used to spray disinfectant all over the work 14 area, walls, floors, celling, milk tanks, etc. When in operation, hazardous chemical would splash 15 and spray hazardous chemicals in a 25–30 foot radius. Supervisors Joe and Pedro both instructed 16 workers to continue to use the broken machine until replaced. This was deliberate indifference to 17 workers health and safety. On July 22, 2020, supervisors ordered Plaintiff to continue to use the 18 malfunctioning air pump machine. Plaintiff was spraying the chemical foam (disinfectant) on 19 each pallet he was working on. The air machine lid was splashing, spewing hazardous chemicals 20 all over and around Plaintiff. Plaintiff did not realize at the time, but hazardous chemical had 21 gotten on his chin/face area, causing chemical burns to appear. When Plaintiff realized the 22 chemical burns were not rashes, he notified his supervisor Joe of the burns and Joe said he would 23 document the incident on necessary forms. 24 /// 25 1 Plaintiff is a convicted state inmate housed in a state prison facility. Therefore, the appropriate legal standard for 26 Plaintiff’s claims is the Eighth Amendment. The Supreme Court has emphasized that the Eighth Amendment’s cruel and unusual punishments clause is the appropriate mechanism for raising claims that challenge inhumane or unsafe 27 conditions of confinement. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). 28 2 It is unclear who “Joe” is because Plaintiff has not named a “Joe” defendant. 1 On September 2, 2020, while working at PIA dairy processing plant, Plaintiff told the new 2 supervisor, John Doe that Plaintiff needed long protective gloves and protective gear to protect 3 from further chemical burns. These gloves are seldom available, and Plaintiff used his own 4 gloves for long periods of time. At times, the only gloves available were for both left-handed or 5 both right-handed “thereby subjecting Plaintiff and coworkers to health and safety concerns and 6 cruel and unusual work conditions.” 7 On February 24, 2021, Plaintiff was working at the PIA-Dairy processing plant. As he 8 was dumping trash into a commercial metal dumpster, Plaintiff had his left hand on top of the 9 metal bin where the hinge was located. Plaintiff leaned down to grab the trash and the trash hit 10 the lid making the lid fall, smashing, squeezing Plaintiff left-hand index finger and either 11 breaking or spraining the finger. The nail came off and it is disfigured and looks horrible. At the 12 same time as the lid smashed Plaintiff’s fingers, a wooden pallet which was on top of the trash 13 can and leaning against the container fell on Plaintiff’s left shoulder/arm creating a small purple 14 bruise. The impact caused serious arm/shoulder pain which still hurts. Plaintiff has not been 15 taken seriously for his injuries. 16 On February 10, 19, and 26, 2021, the air machine which disinfects pallets was still 17 leaking and spraying foam everywhere. It sprayed Plaintiff on both forearms and neck, burning 18 his skin, although these burns were not as severe as the ones to his chin. By this time, several 19 other workers had complained about the hazardous working condition of the still broken air 20 machine. It was used daily and would blow out hazardous chemicals. 21 From March 2, 2021, through the last day of Plaintiff’s work on July 21, 2021,3 Plaintiff 22 was instructed to continue to clean and disinfect the pallets using the same broken air machine. 23 The machine was missing a rubber gasket around the seal. Plaintiff and others continued to 24 inform PIA-Dairy supervisors of the broke air machine. Supervisors instructed to continue with 25 their work and did not ensure safety goggles and other protective gear were worn. Instead, 26 Plaintiff and his coworkers were replaced by workers from another yard/facility. 27 3 The Court notes that the ending dates of Plaintiff’s employment are referred to in the allegations as both in 2021 28 and 2022. 1 The “entity” was responsible for ensuring the health and safety and well-being of Plaintiff 2 and the employees, yet there were no safety meetings or training on working with hazardous 3 chemicals at the PIA-Dairy milk processing plant. 4 At no time during the time Plaintiff worked for PIA-Dairy milk processing did Defendants 5 Paul Silva, Paul’s son-in-law, Joe (last name unknown),4 Pedro (last name unknown) and John 6 Doe (supervisors) ever intervene to prevent workers from using the broken air foam disinfecting 7 machine. Instead these supervisors ordered inmate workers to continue to use the broken air 8 foam disinfecting machine, despite missing the rubber seal/gasket and splashing hazardous 9 chemicals in a 20–30 foot radius. 10 Defendants Ken Clark, Paul Silva, Paul’s son-in-law, Joe (last name unknown), Pedro 11 (last name unknown) and John Doe (supervisors) each failed for months to remove the broken air 12 foam disinfecting machine, and having full knowledge the machine was broken prior to Plaintiff 13 starting to work at PIA-Dairy. They continued to order workers to use the broken machinery. 14 Each defendant, Defendants Paul Silva, Paul’s son-in-law, Joe (last name unknown), Pedro (last 15 name unknown), and John Doe (supervisors), failed to fill out appropriate work accidents forms 16 on each of the accident days, violating Due Process and not allowing for works compensation. 17 Plaintiff also alleges denial of medical care. Following the incident on July 21, 2020, 18 Plaintiff requested to be seen for the chemical burns on his face/chin. Defendant Susan Doherty 19 did not take the visit seriously because PIA-Diary did not attempt to assist Plaintiff in receiving 20 adequate medical care. On July 27, 2020, Defendant Susan Doherty did not know what the rash 21 was caused from, and Plaintiff explained that shaving around it irritated the area. Defendant’s 22 only medical treatment was to tell Plaintiff not to shave in that area for a few days and issued 23 antibiotic cream since the burn was dark purple with pus on the outer skin. No other treatment 24 was provided. 25 Plaintiff submitted several medical 7362s about chemical burns occurring at work. 26 Plaintiff’s skin was not healing with the antibiotics nurse Susan Doherty issued. On September 2, 27 4 It is unclear who the individuals “Paul’s son-in-law” or “Joe (last name unknown),” are because these persons are 28 not named as defendants. 1 2020, Defendant Susan Doherty stated that the burns appeared to be healing. Plaintiff requested 2 to see a doctor, or dermatologist and skin specialist. Yet, Defendant said that would not occur 3 because it was not an emergency. 4 After the February 24, 2021 accident and injuries on his index finger and nail and left 5 shoulder, Plaintiff submitted several 7362 medical forms explaining what happened. He stated 6 that his fingers are dislocated or broke and wanted an x-ray. Plaintiff at no time ever received an 7 x-ray. Plaintiff was seen on March 1, 2021 by Defendant Linda Ortega regarding cleaning up 8 wounds so that they would not get infected and asked if Plaintiff had a tetanus shot. Plaintiff 9 requested x-rays for his fingers, but nothing was done by Defendant like referring him to a doctor 10 or for x-rays. 11 On July 8, 2021, Plaintiff submitted medical slips 7362s indicating that his left index 12 finger was crooked, and his left arm was weaker due to the pallet hitting his left shoulder. 13 Nothing was done. On July 19, 2021, Plaintiff was scheduled for physical therapy but was left in 14 constant pain ever since accident occurred. On February 24, 2021, after Plaintiff had the work 15 accident, he was sent to the medical office for his injuries. He was bleeding profusely, and 16 Plaintiff’s left index fingernail was popping up and detached. Defendant Linda Ortega only 17 washed off the blood on hands and fingers. Nothing more was done. Plaintiff said that his 18 fingers were either broken, sprained, or dislocated and requested X-rays. Defendant Ortega failed 19 to refer Plaintiff to a doctor or obtain an x-ray. 20 When Plaintiff saw medical, he told each medical defendant of his medical condition such 21 as extreme pain, lack of shoulder arm movement, not receiving x-rays. Neither Defendant Linda 22 Ortega, Susan Doherty nor supervisor Doctor John Doe ever responded reasonably to Plaintiff’s 23 need for medical care. They did not refer Plaintiff to see a medical doctor or for x-rays. 24 Defendant Linda Ortega, Susan Doherty, supervisor Doctor John Doe, and Adrian Jaques failed 25 to provide x-rays, follow up treatment, and initial emergency care after each accident physical 26 treatment. 27 The CDCR health care system and Policy under Title 15 is inadequate and ineffective. At 28 no time after the accident did Defendants x-ray Plaintiff’s finger or left shoulder/arm to verify the 1 injuries. From February 24, 2021 to February 17, 2022, Plaintiff was in pain from his left 2 shoulder. Plaintiff got treated solely because he was transferred to another institution. 3 Plaintiff saw Defendant Adrian Jaques who “ignored” Plaintiff and prescribed ibuprofen 4 for alleviation of pain and use of capsaicin cream for chemical burns. 5 PIA-Dairy supervisors act with deliberate indifference or reckless disregard to safety by 6 “failing to act” reasonably in response to danger. PIA Dairy supervisors Paul Silva, Joe 7 (unknown last name), Pedro (unknown last name) and John Doe had plenty of time and an 8 opportunity to get a seal gasket for the broken air foam machine, yet failed to take appropriate 9 measures to abate the risk of harm. 10 Plaintiff alleges an Eighth Amendment violation by Ken Clark, Paul Silva, Joe (last name 11 unknown), Pedro (last name unknown), John Doe (white supervisor) by continuously subjecting 12 Plaintiff to unsafe, unhealthy, dangerous work conditions by making Plaintiff continue to use a 13 broken air foam machine missing its rubber plastics gasket. They knew it was broken for 17 14 months. 15 Plaintiff alleges an Eighth Amendment violation by Doctor John Doe, Susan Doherty, 16 Linda Ortega and Adrian Jaques by depriving Plaintiff of a right to adequate medical healthcare. 17 Plaintiff alleges that the entity of the PIA-Dairy milk processing plant at Corcoran failed 18 to adequately supervise all PIA-Diary supervisors named as defendants. The PIA-Dairy entity 19 trains, hires, oversees, gives orders and allowed broken machinery which repeatedly hurt Plaintiff 20 and continued to be used, even though supervisors knew the machinery was broken. The 21 entity/owners failed to properly train to use the hazardous chemicals and broken foam air 22 machine. The February 24, 2021 accident should not have occurred because the trash bin should 23 have been completely open and not had a big metal storage bin and the pallet which fell should 24 not have been left leaning on the storage bin. 25 Plaintiff alleges his equal protection rights under the Fourteenth Amendment were 26 violated by having Plaintiff work in an unsafe, unhealthy and dangerous work conditions. 27 Plaintiff also alleges that his Fourteenth Amendment rights were violated by the medical care he 28 was provided. 1 As remedies, Plaintiff seeks declaratory relief and compensatory and punitive damages. 2 C. Discussion 3 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to 4 state a cognizable claim under 42 U.S.C. § 1983. 5 1. Federal Rule of Civil Procedure 8 6 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 7 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 8 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 9 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 10 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 11 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 12 at 570). While factual allegations are accepted as true, legal conclusions are not. Id.; see also 13 Twombly, 550 U.S. at 556–57; Moss, 572 F.3d at 969. 14 Here, Plaintiff’s complaint is not short. It is not a plain statement of his claims showing 15 that he is entitled to relief. Plaintiff’s allegations are conclusory and do not state what happened, 16 when it happened, or which defendant was involved. General assertions regarding who knew of 17 Plaintiff’s working conditions are not sufficient, and Plaintiff may not merely state the elements 18 of a cause of action without providing any factual allegations in support of his claims. Plaintiff 19 should state his key factual allegations as to each defendant. For instance, Plaintiff must allege 20 who he told what and when regarding the air foam machine and what care he was provided for his 21 injuries. His allegations that “nothing was done” for medical care are insufficient because he also 22 alleges that some kind of care was provided. 23 2. Supervisory Liability 24 To the extent Plaintiff seeks to hold any defendant liable based solely upon their 25 supervisory role, he may not do so. Liability may not be imposed on supervisory personnel for 26 the actions or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 27 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. 28 City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th 1 Cir. 2002). “A supervisor may be liable only if (1) he or she is personally involved in the 2 constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s 3 wrongful conduct and the constitutional violation.” Crowley v. Bannister, 734 F.3d 967, 977 (9th 4 Cir. 2013) (citation and quotation marks omitted); accord Lemire v. Cal. Dep’t of Corrs. & 5 Rehab., 726 F.3d 1062, 1074–75 (9th Cir. 2013); Lacey v. Maricopa Cty., 693 F.3d 896, 915–16 6 (9th Cir. 2012) (en banc). “Under the latter theory, supervisory liability exists even without overt 7 personal participation in the offensive act if supervisory officials implement a policy so deficient 8 that the policy itself is a repudiation of constitutional rights and is the moving force of a 9 constitutional violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 10 (9th Cir. 1989)) (internal quotation marks omitted). 11 Plaintiff seeks to hold Ken Clark, Paul Silva, Paul’s son in law, Joe (last name unknown), 12 Pedro (last name unknown), and John Doe (supervisors), responsible for Plaintiff’s injuries from 13 the foam air machine. Plaintiff alleges that each defendant “knew” that the foam air machine was 14 broken, Plaintiff has failed to allege direct participation of these defendants in the alleged 15 violations. Plaintiff is attempting to allege that Ken Clark, Paul Silva, Paul’s son-in-law, Joe (last 16 name unknown), Pedro (last name unknown), and John Doe (supervisors) participated in or 17 directed the violations, or knew of the violations and failed to act to prevent them. Plaintiff 18 alleges that the warden “knew” or “should have known” or “absolutely knew” about conditions. 19 Plaintiff merely relies on these supervising Defendants’ responsibilities to ensure the safety and 20 health of the prisoners, but this claim is based on respondeat superior which is not cognizable 21 under section 1983. Iqbal, 556 U.S. at 677. Such conclusory allegations are insufficient to state 22 the causal link between such defendant and the claimed constitutional violation. 23 To prove liability for an action or policy, the plaintiff “must . . . demonstrate that his 24 deprivation resulted from an official policy or custom established by a . . . policymaker possessed 25 with final authority to establish that policy.” Waggy v. Spokane Cty. Wash., 594 F.3d 707, 713 26 (9th Cir. 2010). When a defendant holds a supervisory position, the causal link between such 27 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 28 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in 2 civil rights violations are not sufficient. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 3 1982). In addition, it is unclear what the policy is that is purportedly at issue. Plaintiff’s 4 conclusory statements are insufficient to state a cognizable claim against the supervisory 5 defendants. Plaintiff has failed to “demonstrate that his deprivation resulted from an official 6 policy or custom established by a . . . policymaker possessed with final authority to establish that 7 policy.” 8 Plaintiff mentions that supervisors should have trained differently or better. A “failure to 9 train” theory can be the basis for a supervisor’s liability under § 1983 in only limited 10 circumstances, such as where the failure amounts to deliberate indifference. See City of Canton v. 11 Harris, 489 U.S. 378, 387–90 (1989). To establish a failure to train claim, a plaintiff must show 12 that “ ‘in light of the duties assigned to specific officers or employees, the need for more or 13 different training [was] obvious, and the inadequacy so likely to result in violations of 14 constitutional rights, that the policy-makers . . . can reasonably be said to have been deliberately 15 indifferent to the need.’ “ Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (quoting Canton, 16 489 U.S. at 390). Plaintiff has not alleged facts demonstrating that any defendant was 17 deliberately indifferent to a need for more or different training. 18 3. Linkage Requirement 19 The Civil Rights Act under which this action was filed provides: 20 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, 21 privileges, or immunities secured by the Constitution . . . shall be liable to the 22 party injured in an action at law, suit in equity, or other proper proceeding for redress. 23 24 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between 25 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 26 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 27 Ninth Circuit has held that “[a] person ‘subjects another to the deprivation of a constitutional 28 right, within the meaning of section 1983, if he does an affirmative act, participates in another’s 1 affirmative acts or omits to perform an act which he is legally required to do that causes the 2 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 3 Plaintiff must link each named defendant. Plaintiff names the defendants but then uses 4 different terminology to refer to these purported defendants. In addition, Plaintiff must allege 5 factual support for each defendant. Defendants are entitled to know the conduct they are alleged 6 to have engaged in which violated Plaintiff’s rights. Fed. R. Civ. P. 8. 7 4. Federal Rules of Civil Procedure 18 and 20 8 Plaintiff may not bring unrelated claims against unrelated parties in a single action. Fed. 9 R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 10 507 F.3d 605, 607 (7th Cir. 2007); Mackey v. Price, 2020 WL 7319420, at *3–4 (E.D. Cal. Dec. 11 11, 2020), report and recommendation adopted, 2021 WL 843462 (E.D. Cal. Mar. 5, 2021). 12 Plaintiff may bring a claim against multiple defendants so long as (1) the claim arises out of the 13 same transaction or occurrence, or series of transactions and occurrences, and (2) there are 14 commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 15 1351 (9th Cir. 1997). The “same transaction” requirement refers to similarity in the factual 16 background of a claim. Id. at 1349. Only if the defendants are properly joined under Rule 20(a) 17 will the Court review the other claims to determine if they may be joined under Rule 18(a), which 18 permits the joinder of multiple claims against the same party. 19 Plaintiff may not raise different claims against different defendants in a single action. For 20 instance, Plaintiff may not state unrelated claims of his injury from the chemical burns/medical 21 care with other claims for injury to his fingers/medical care or denial of gloves. The injuries from 22 the chemical burns and the injury to his fingers are separate incidents. Unrelated claims 23 involving multiple defendants belong in different suits. Merely because Plaintiff was working at 24 the same job does not make every injury or incident related. 25 5. Eleventh Amendment Immunity 26 Plaintiff brings suit against the “entity” of the Prison Industry Authority and the “owners” 27 of the Prison Industry Authority. 28 /// 1 The Prison Industry Authority, or “PIA,” is an agency within the California Department of 2 Corrections and Rehabilitation which, among other things, operates work programs for prisoners. 3 See Cal. Penal Code §§ 2800–2801; Burleson v. California, 83 F.3d 311, 312–13 (9th Cir. 1996) 4 (describing origins of PIA); Jefferson v. Hollingsworth, No. 3:17-CV-1099-BEN-BGS, 2017 WL 5 3396516, at *3 (S.D. Cal. Aug. 4, 2017). The PIA is by statute a part of the CDC, now the 6 California Department of Corrections and Rehabilitation (“CDCR”). Burleson, 83 F.3d at 312– 7 13; Cal. Penal Code § 2800 (“Commencing July 1, 2005, there is hereby continued in existence 8 within the Department of Corrections and Rehabilitation the Prison Industry Authority.”). The 9 PIA’s status as a part of the California correctional system brings it within the ambit of “prison- 10 structured programs.” Burleson, 83 F.3d at 314. 11 Claims for damages against the state, its agencies, or its officers for actions performed in 12 their official capacities are barred under the Eleventh Amendment, unless the state waives its 13 immunity. Kentucky v. Graham, 473 U.S. 159, 169 (1985) (Eleventh Amendment bars a damages 14 action against a State in federal court); see also Will v. Michigan Dep’t of State Police, 491 U.S. 15 58, 71 (1989). Indeed, the Eleventh Amendment prohibits federal courts from hearing a Section 16 1983 lawsuit in which damages or injunctive relief is sought against a state, its agencies (such as 17 CDCR) or individual prisons, absent “a waiver by the state or a valid congressional override. . . .” 18 Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). Suits for injunctive relief are also 19 generally barred. See Nat’l Audubon Soc’y v. Davis, 307 F.3d 835, 847 (9th Cir. 2002); 20 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“It is clear . . . that in the 21 absence of consent a suit in which the State or one of its agencies or departments is named as the 22 defendant is proscribed by the Eleventh Amendment.”). Plaintiff cannot state a claim against the 23 State of California or its officers in their official capacities. 24 6. Eighth Amendment 25 a. Deliberate Indifference to Safety 26 Plaintiff contends that the air pump machine was a known danger to the individuals 27 working in the PIA Dairy yet the supervisors never had it fixed. Plaintiff was injured. 28 /// 1 The Eighth Amendment requires that prison officials take reasonable measures to 2 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. at 832. In particular, prison 3 officials have a duty to protect prisoners from violence at the hands of other prisoners. Id. at 833; 4 Cortez v. Skol, 776 F. 3d 1046, 1050 (9th Cir. 2015); Hearns v. Terhune, 413 F.3d 1036, 1040 5 (9th Cir. 2005); Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982); Gillespie v. Civiletti, 629 6 F.2d 637, 642 & n.3 (9th Cir. 1980). 7 The failure of prison officials to protect inmates from attacks by other inmates or from 8 dangerous conditions at the prison violates the Eighth Amendment when two requirements are 9 met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is, 10 subjectively, deliberately indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A 11 prison official is deliberately indifferent if he knows of and disregards an excessive risk to inmate 12 health or safety by failing to take reasonable steps to abate it. Id. at 837. 13 The facts must show that defendants’ failure to fix the danger caused plaintiff’s injury. 14 See Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 15 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 16 perform an act he is legally required to do that causes the alleged deprivation). Failure to 17 remediate following plaintiff’s injury does not support liability, because that cannot have caused 18 plaintiff’s injury. Also, no defendant can be liable for an unsafe condition on the basis of his or 19 her general supervisory or administrative responsibilities, as there is no respondeat superior 20 liability under § 1983. See Iqbal, 556 U.S at 676; Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 21 2011). 22 The claims against some defendants appear to be based on failure to correct dangerous 23 conditions after Plaintiff’s injury on July 22, 2020. Failure to correct a dangerous condition only 24 supports an Eighth Amendment claim if it caused plaintiff’s particular injury. See generally, 25 Rizzo v. Goode, 423 U.S. 362 (1976) (§ 1983 defendant liable only for harms caused by his own 26 actions). Plaintiff did not allege that he informed his supervisors of the malfunctioning machine 27 before he was injured (or say who he told and what he said), and he did not amend his complaint 28 to clarify his allegations. 1 i. Malfunctioning Air Pump Machine 2 Plaintiff alleges that he told Supervisor Joe and Pedro that the air pump machine was 3 broken, without the proper gasket, which was causing Plaintiff to be sprayed by hazardous 4 chemicals. On July 22, 2020, they instructed Plaintiff to continue to use the air pump machine. 5 Plaintiff received chemical burns. Plaintiff does not allege that after he told supervisor Joe about 6 the burns that supervisor Joe required that Plaintiff continue to use the broken air pump machine. 7 Plaintiff alleges that on September 2, 2020, he told new supervisor John Doe that Plaintiff 8 needed gloves to use to protect from further chemical burns. Plaintiff complains that the gloves 9 were either right or left-handed, and not both. But Plaintiff fails to allege what happened and 10 whether he was injured. 11 Plaintiff alleges that he was sprayed with the air foam machine on February 10, 19, and 12 26, 2021, and other dates in March–July, and was injured. But he fails to allege that any prison 13 official is deliberately indifferent because he knows of and disregards an excessive risk to inmate 14 health or safety by failing to take reasonable steps to abate it. He does not allege who instructed 15 him to use the machine on those dates and how that person knew it placed Plaintiff at risk of 16 safety. Conclusory allegations that a supervisor “has full knowledge” of the potential harm are 17 insufficient. 18 ii. February 24, 2021 Trash Bin/Pallet Falling Incident 19 Plaintiff complains that on February 24, 2021, when he was putting trash in the bin, the lid 20 slammed on his fingers and a pallet that had been leaning on the lid smashed onto his shoulder. 21 Plaintiff fails to state a cognizable claim for this incident. There are no facts that the 22 condition was deliberately set to harm Plaintiff or that any defendant knew of the condition of the 23 trash bin. Plaintiff injured himself when he was putting trash in the trash bin, when the lid 24 accidently fell on his fingers. There are no facts that any defendant was responsible for the lid 25 falling on Plaintiff’s fingers or responsible for the pallet being on the bin. At most, there may be 26 the possibility of negligence for the accidental injury to Plaintiff. Neither accident nor negligence 27 constitutes cruel and unusual punishment, as “[i]t is obduracy and wantonness, not inadvertence 28 or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual 1 Punishments Clause.” Whitley v. Albers, 475 U.S. 312, 319 (1986) 2 b. Deliberate Indifference to Medical Care 3 Plaintiff alleges a claim for deliberate indifference to a serious medical need. 4 To allege a claim of deliberate indifference, plaintiff must show he had a serious medical 5 need and defendants were deliberately indifferent to that need. A medical need is serious “if the 6 failure to treat the prisoner’s condition could result in further significant injury or the 7 ‘unnecessary and wanton infliction of pain.’ “ McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 8 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) 9 (en banc). Indications of a serious medical need include “the presence of a medical condition that 10 significantly affects an individual’s daily activities.” Id. at 1059–60. By establishing the 11 existence of a serious medical need, a prisoner satisfies the objective requirement for proving an 12 Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). 13 Deliberate indifference is established only where the defendant subjectively “knows of 14 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 15 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 16 Deliberate indifference can be established “by showing (a) a purposeful act or failure to respond 17 to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett v. 18 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citation omitted). Civil recklessness (failure “to act 19 in the face of an unjustifiably high risk of harm that is either known or so obvious that it should 20 be known”) is insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 21 U.S. 825, 836–37 & n.5 (1994) (citations omitted). 22 A difference of opinion between an inmate and prison medical personnel—or between 23 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 24 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 25 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Additionally, “a complaint that a 26 physician has been negligent in diagnosing or treating a medical condition does not state a valid 27 claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 28 become a constitutional violation merely because the victim is a prisoner. “ Estelle, 429 U.S. at 1 106. To establish a difference of opinion rising to the level of deliberate indifference, a “plaintiff 2 must show that the course of treatment the doctors chose was medically unacceptable under the 3 circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 4 In applying this standard, the Ninth Circuit has held that before it can be said that a 5 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 6 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 7 cause of action.” Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. 8 Gamble, 429 U.S. 97, 105–06 (1976)). Even gross negligence is insufficient to establish 9 deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 10 (9th Cir. 1990). 11 Plaintiff fails to state a cognizable claim. Plaintiff alleges that Defendant Susan Doherty 12 did not know what caused his rash on July 27, 2020, and she only gave him antibiotic cream. 13 Plaintiff later discovered the chemical burns. Plaintiff’s allegations fail to show Defendant 14 Doherty’s indifference. Plaintiff alleges Doherty did not know what the condition was, but she 15 provided some topical antibiotic cream for the rash. 16 Plaintiff alleges that he saw Defendant Doherty on September 2 and while he wanted to 17 see a doctor, Defendant Doherty thought the burns were healing. A difference of opinion 18 between the prisoner and medical providers concerning the appropriate course of treatment does 19 not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 20 1996). 21 Plaintiff alleges that when he injured his fingers on February 24, 2021, he went to medical 22 with bloody fingers and related injuries. He saw Defendant Linda Ortega who only washed off 23 the blood. She refused to refer Plaintiff to a doctor or to get an x-ray. As currently alleged, 24 Plaintiff fails to state a cognizable claim. Plaintiff was provided care, and a difference of opinion 25 as to whether he needed a doctor or x-rays does not state a cognizable claim. This claim is also 26 improperly joined. 27 Plaintiff alleges he saw Defendant Adrian Jaques for his shoulder pain, who “ignored” 28 Plaintiff. However, Defendant Jaques gave Plaintiff pain medication and cream. Plaintiff was 1 provided care, and a difference of opinion as to whether he needed a doctor or x-rays does not 2 state a cognizable claim. This claim is also improperly joined. 3 Further, Plaintiff alleges that when Plaintiff saw “medical,” he told each medical 4 defendant of his medical condition such as extreme pain, lack of shoulder arm movement, and not 5 receiving x-rays. Plaintiff fails to state a cognizable claim based on the conclusory allegations. 6 Plaintiff must state factual support as to the identity of each defendant and what that defendant 7 did or did not do. Plaintiff must allege the extent of the care he was provided. Plaintiff is 8 reminded that a difference of opinion as to whether he needed a doctor or x-rays does not state a 9 cognizable claim. 10 7. Equal Protection 11 The Equal Protection Clause requires the State to treat all similarly situated people 12 equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). This does not 13 mean, however, that all prisoners must receive identical treatment and resources. See Cruz v. 14 Beto, 405 U.S. 319, 322 n.2 (1972); Ward v. Walsh, 1 F.3d 873, 880 (9th Cir. 1993); Allen v. 15 Toombs, 827 F.2d 563, 568–69 (9th Cir. 1987). 16 “To prevail on an Equal Protection claim brought under § 1983, Plaintiff must allege facts 17 plausibly showing that “ ‘the defendants acted with an intent or purpose to discriminate against 18 [them] based upon membership in a protected class,’ “ (citing Thornton v. City of St. Helens, 425 19 F.3d 1158, 1166 (9th Cir. 2005)) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 20 2001)), or that similarly situated individuals were intentionally treated differently without a 21 rational relationship to a legitimate state purpose, Engquist v. Oregon Dep’t of Agr., 553 U.S. 22 591, 601–02 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch 23 Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 24 F.3d 478, 486 (9th Cir. 2008). 25 Plaintiff has not stated a cognizable equal protection claim. Plaintiff does not allege that 26 he was discriminated against because of his membership in any protected class. He also does not 27 allege factual support that he was intentionally treated differently than other similarly situated 28 inmates without a rational relationship to a legitimate state purpose. Plaintiff has not provided 1 any factual support for this claim. Fletcher v. Clendenin, No. 1:22-CV-00249-AWI-BAM (PC), 2 2022 WL 2791480, at *5 (E.D. Cal. July 15, 2022) (Equal Protection claim dismissed for failure 3 to allege factual support for denial of treatment based on membership in a protected class). 4 8. Title 15 and Policy Violation 5 To the extent that 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. 8 See, e.g., Nible v. Fink, 828 Fed. Appx. 463 (9th Cir. 2020) (violations of Title 15 of the 9 California Code of Regulations do not create private right of action); Nurre v. Whitehead, 580 10 F.3d 1087, 1092 (9th Cir. 2009) (section 1983 claims must be premised on violation of federal 11 constitutional right); Prock v. Warden, No. 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at *11– 12 12 (E.D. Cal. Oct. 8, 2013) (noting that several district courts have found no implied private right 13 of action under title 15 and stating that “no § 1983 claim arises for [violations of title 15] even if 14 they occurred.”); Parra v. Hernandez, No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. 15 Cal. Nov. 13, 2009) (granting motion to dismiss prisoner’s claims brought pursuant to Title 15 of 16 the California Code of Regulations); Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW 17 (PC), 2009 WL 1211372, at *9 (E.D. Cal. May 1, 2009) (holding that there is no private right of 18 action under Title 15 of the California Code of Regulations). 19 9. Declaratory Relief 20 To the extent Plaintiff’s complaint seeks a declaratory judgment, it is unnecessary. “A 21 declaratory judgment, like other forms of equitable relief, should be granted only as a matter of 22 judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Vill., 23 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful 24 purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and 25 afford relief from the uncertainty and controversy faced by the parties.” United States v. 26 Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). If this action reaches trial and the jury returns 27 a verdict in favor of Plaintiff, then that verdict will be a finding that Plaintiff’s constitutional 28 rights were violated. Accordingly, a declaration that any defendant violated Plaintiff’s rights is 1 unnecessary. 2 10. State Law Claims 3 Plaintiff may be attempting to allege state law claims against Defendants. “California’s 4 Government Claims Act requires that a tort claim against a [state] public entity or its employees 5 for money or damages be presented to the California Victim Compensation and Government 6 Claims Board . . . no more than six months after the cause of action accrues.” Lopez v. Cate, No. 7 1:10-cv-01773-AWI, 2015 WL 1293450, at *13 (E.D. Cal. 2015) (citing Cal. Gov’t Code 8 §§ 905.2, 910, 911.2, 945.4, 950–950.2). Such compliance must be affirmatively alleged. 9 “Timely claim presentation is not merely a procedural requirement, but is . . . a condition 10 precedent to plaintiff’s maintaining an action against defendant and thus an element of the 11 plaintiff’s cause of action.” Id. (internal quotation marks and citations omitted). The “obligation 12 to comply with the Government Claims Act” is independent of the obligation to exhaust 13 administrative remedies pursuant to the Prison Litigation Reform Act (“PLRA”). McPherson v. 14 Alamo, No. 3:15-cv-03145-EMC, 2016 WL 7157634, at *6 (N.D. Cal. 2016) (citing Parthemore 15 v. Col, 221 Cal. App. 4th 1372, 1376 (2013)). 16 Plaintiff does not allege that he presented a claim to the California Government Claims 17 Program (the successor to the Victim Compensation and Government Claims Board) within six 18 months of the incidents underlying this action. Thus, Plaintiff’s state law claims, to the extent he 19 raises any, are not cognizable. Pradia v. Becerra, No. 1:20-CV-01348 JLT (PC), 2021 WL 20 1839613, at *4 (E.D. Cal. May 7, 2021); see Harris v. Escamilla, 736 F. App’x 618, 621 (9th Cir. 21 2018) (affirming dismissal of state-law claim because plaintiff did “not allege[ ] that he submitted 22 an administrative claim before bringing . . . lawsuit, as required by the Government Claims Act”) 23 (citation omitted). 24 11. Workers’ Compensation 25 The allegations are unclear about Plaintiff’s claim for workers’ compensation. 26 California’s Workers’ Compensation Act grants the Workers’ Compensation Appeals 27 Board exclusive authority to hear claims “[f]or the recovery of [workers’] compensation, or 28 concerning any right or liability arising out of or incidental thereto.” Cal. Labor Code § 5300(a); 1 see also U.S. Fid. & Guar. Co. v. Lee Invs. LLC, 641 F.3d 1126, 1134 (9th Cir. 2011). The 2 statute establishes “exclusive jurisdiction within the workers’ compensation system for ‘all 3 disputes over coverage and payment.’ “ Mitchell v. Scott Wetzel Servs., Inc., 227 Cal. App. 3d 4 1474, 1480 (1991) (quoting Marsh v. McLennan, Inc., 49 Cal 3d 1, 7–8 (1989)). For this reason, 5 other district courts in California have refused to entertain claims involving worker’s 6 compensation benefits, brought by inmate workers who have been injured in prison. See 7 Rodriguez v. State Comp. Ins. Fund, No. 05-cv-2600 LKK GGH, 2006 WL 8458934, at *3 (E.D. 8 Cal. Jan. 9, 2006) (“The mere denial of workman’s compensation by the State Insurance 9 Compensation Fund does not present a federal question.”); Ledesma v. Cal. Rehab. Ctr., No. 15- 10 cv-2638 FMO JPR, 2016 WL 1165920, at *3 (C.D. Cal. Feb. 16, 2016), report and 11 recommendation adopted, 2016 WL 1170885 (C.D. Cal. Mar. 24, 2016); Montgomery v. Cal. 12 Worker’s Comp. Appeals Bd., No. 10-cv-3076 CL, 2011 WL 2470080, at *3 (D. Or. May 9, 13 2011), report and recommendation adopted, 2011 WL 2462938 (D. Or. June 20, 2011). As the 14 magistrate judge explained in Montgomery, “[r]egardless of the label placed on plaintiff’s 15 claims . . . [their] gravamen . . . relate to denial of worker’s compensation benefits which plaintiff 16 believes are due him” and thus they “are barred by the exclusive remedy provided by the 17 California workers’ compensation system.” Id. (citations omitted). Because exclusive 18 jurisdiction is vested in the California workers’ compensation system, this Court lacks jurisdiction 19 over plaintiff’s worker’s compensation claims. 20 12. Doe Defendants 21 Plaintiff names several doe defendants. “As a general rule, the use of ‘John Doe’ to 22 identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). 23 Plaintiff is advised that John Doe or Jane Doe defendants (i.e., unknown defendants) cannot be 24 served by the United States Marshal until Plaintiff has identified them as actual individuals and 25 amended his complaint to substitute names for John Doe or Jane Doe. 26 /// 27 /// 28 /// 1 III. Failure to Prosecute and Failure to Obey a Court Order 2 A. Legal Standard 3 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 4 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 5 within the inherent power of the Court.” District courts have the inherent power to control their 6 dockets and “[i]n the exercise of that power they may impose sanctions including, where 7 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 8 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 9 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 10 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 11 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 12 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 13 (dismissal for failure to comply with court order). 14 In determining whether to dismiss an action, the Court must consider several factors: 15 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 16 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 17 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 18 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 19 B. Discussion 20 Here, Plaintiff’s first amended complaint is overdue, and he has failed to comply with the 21 Court’s orders. The Court cannot effectively manage its docket if Plaintiff ceases litigating his 22 case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal. 23 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 24 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 25 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 26 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 27 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 28 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 1 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 2 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 3 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 4 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 5 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s August 25, 2022 screening 6 order expressly warned Plaintiff that his failure to file an amended complaint would result in a 7 recommendation of dismissal of this action, with prejudice, for failure to obey a court order and 8 for failure to state a claim. (ECF No. 5, p. 21.) In addition, the Court’s October 3, 2022 and 9 November 7, 2022 orders granting extensions of time for Plaintiff to file his amended complaint 10 also warned Plaintiff that failure to file a first amended complaint would result in a 11 recommendation of dismissal of this action, with prejudice, for failure to obey a court order and 12 for failure to state a claim. (ECF Nos. 7, p. 2; 9, p. 3.) Thus, Plaintiff had adequate warning that 13 dismissal could result from his noncompliance. 14 Additionally, at this stage in the proceedings there is little available to the Court that 15 would constitute a satisfactory lesser sanction while protecting the Court from further 16 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this 17 action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is 18 likely to have no effect given that Plaintiff has ceased litigating his case. 19 IV. Conclusion and Recommendation 20 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 21 district judge to this action. 22 Furthermore, the Court finds that dismissal is the appropriate sanction and HEREBY 23 RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim 24 pursuant to 28 U.S.C. § 1915A, for failure to obey court orders, and for Plaintiff’s failure to 25 prosecute this action. 26 These Findings and Recommendation will be submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 28 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 1 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 2 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 3 specified time may result in the waiver of the “right to challenge the magistrate’s factual 4 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 5 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 IT IS SO ORDERED. 7 8 Dated: January 10, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28