Cornel Jackson v. Tyson Pouge, et al.

Opinion

1 2 3 4 5 6 7 10 11 CORNEL JACKSON, Case No. 1:24-cv-1027-KES-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN 13 v. CLAIMS AND DEFENDANTS 14 TYSON POUGE, et al., (ECF No. 16) 15 Defendants. FOURTEEN (14) DAY DEADLINE 16 17 Plaintiff Cornel Jackson (“Plaintiff”) is a pretrial detainee proceeding pro se and in forma 18 pauperis in this civil rights action under 42 U.S.C. § 1983. The Court screened Plaintiff’s 19 complaint, and Plaintiff was granted leave to amend. (ECF No. 8.) Plaintiff filed a first amended 20 complaint. On September 15, 2025, the Court dismissed Plaintiff’s first amended complaint for 21 failure to state a cognizable claim, and granted Plaintiff leave to file a second amended complaint 22 within thirty days. (ECF No. 13.) Plaintiff’s second amended complaint is currently before the 23 Court for Screening. (ECF No. 16.) 24 I. Screening Requirement and Standard 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 28 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 1 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 2 A complaint must contain “a short and plain statement of the claim showing that the 3 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 4 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 7 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 8 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 9 To survive screening, Plaintiff’s claims must be facially plausible, which requires 10 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 11 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 12 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 13 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 14 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 15 II. Plaintiff’s Allegations 16 Plaintiff alleges that the events in the complaint occurred while he was housed at the 17 Madera County Jail. Plaintiff does not list the defendants’ names in the caption (Fed.R.Civ. P. 18 10), but identifies the following defendants in paragraph b-2 of the second amended complaint: 19 (1) Chief Tyson Pouge, (2) Madera County, (3) Sgt. Rivera, (4) Cpl. Alva, (5) Taylor, (6) 20 Guzman 1, (7) Guzman 2, (8) Sheilds,1 (9) Cortes, (10) John Doe 1, (11) John Doe 2. Plaintiff 21 alleges as follows: 22 Plaintiff is a pretrial detainee at the time of the events. Plaintiff alleges that he has 23 exercised his rights by filing civil rights actions and defendants have “conspired in enforcing an 24 underground custom of singling the Plaintiff out and placing him in situation where harm may 25 result.” (ECF No. 16 at 3.) Plaintiff alleges that each of the defendants are defendants in other 26

27 1 Plaintiff refers to this defendant as both “Shield” and “Shields.” The Court adopts the spelling of “Shields” that Plaintiff first used. The Court notes that any incorrect spelling of a defendant’s 28 name may result in a delay or inability to serve the defendant. 1 civil rights actions that have passed screening and/or have been settled. 2 On July 23, 2024, classification defendants John Doe 1 and John Doe 2 moved a 3 documented aggressive inmate who has substantial record for violence and classified as an 4 “extremely dangerous inmate,” and who has assaulted every cellmate he has been house with. 5 Immediately after Defendants’ decision to move this inmate into Plaintiff’s cell, the inmate began 6 to demonstrate unusual behavior of being intentionally unsanitary and hostile. Plaintiff instantly 7 informed the housing officer of the aggressive inmate’s behavior. This nondefendant conveyed 8 his knowledge of the inmate’s violent history and disbelief that Defendants John Doe 1 and John 9 Doe 2 would put the aggressive inmate in the dormitory housing, knowing of this violence. 10 Officer Moua realizing the risk, called his supervisor, Defendant Cpl. Alva to report and 11 remedy the problem. Defendant Cpl. Alva’s response was to enforce an unwritten policy/or 12 custom, that if he was forced to move the aggressive inmate, then he would be forced to 13 implement a group punishment on the whole housing module with turning the building into 14 administrative segregation. Officer Moua advised Plaintiff that he documented the incident and 15 emailed the classification Defendants John Doe 1 and John Doe 2, informing them that their 16 decision was a wrong one and that the aggressive inmate needed to be housed single cell. After 17 raising his safety concerns with Officer Moua, Plaintiff returned to his dorm. The aggressive 18 inmate called Plaintiff a snitch and argumentatively called him a nigger. Plaintiff was in fear but 19 addressed the safety concern at the next shift. 20 On July 25, 2024, Plaintiff took his safety concern to Defendant Guzman 1 who was 21 working the housing module. Guzman 1 told Plaintiff that she understood Plaintiff’s fears, as 22 classification failures, knowing the inmate was a problem. Defendant Guzman 1 reported that 23 Officer Moua documented the incident on the daily log and she knew what was going on. 24 Guzman 1 said that there was nothing she could do to remedy the problem. Plaintiff explained 25 that this put Plaintiff of serious risk and her failure to do anything was failure to protect. Plaintiff 26 alleges that Defendant Guzman 1 witnessed, during a facility count, the aggressive inmate push 27 Plaintiff to the ground after taking a swing at the Plaintiff. Defendant Guzman 1 opened the door 28 and ordered Plaintiff to get up and for the aggressive inmate to “knock it off.” Plaintiff told 1 Guzman 1 that Plaintiff was trying to prevent harm. Guzman 1 said to the Plaintiff to not be a 2 snitch and closed the door. Plaintiff requested a grievance which she denied and left. 3 On July 27, 2024, the inmate smeared feces all over the toilet. Plaintiff asked the inmate 4 to clean up after himself. He quickly became violent. Plaintiff alleges that Plaintiff took his 5 safety concerns to the housing officer Defendant Taylor, who said that he knew about the 6 aggressive inmate’s behavior through Officer Moua and Defendant Guzman 1’s daily logs. 7 Taylor provided Plaintiff with wipes and said there was not anything he could do to remedy the 8 risk. Taylor documented the incident by email but said there was not anything he could do about 9 it. 10 On July 29, 2024, the aggressive inmate stated with racist rants and remarks about how 11 “he hated niggers and how the only good nigger was a dead nigger.” He repeatedly asked 12 Plaintiff if he wanted to be a dead nigger and pushed Plaintiff in front of Defendant officer 13 Shields. Defendant Shields was doing med pass and told the aggressive inmate that there wasn’t 14 any time for that shit. Plaintiff told Defendant Sheilds, who is also a black man, what was going 15 on and the degrading remarks that are being tossed around. Defendant Shields advised he would 16 document what he saw but that there wasn’t anything he could do. Defendant Shields said that 17 “his supervisory defendant Rivera was well aware of the situation with the aggressive behavior 18 demonstrated by the inmate and it’s nothing she going to do then it’s a dead issue deal with it.” 19 (ECF No. 16 at 7.) 20 On July 29, 2024, Plaintiff took his safety concerns to classification officer Defendant 21 Guzman 2. When Plaintiff told her that the ongoing issue had now passed words, she reported 22 her disbelief that classification officer Defendants John Doe 1 and John Doe 2 would even move 23 the aggressive inmate to a dorm setting, knowing his documented behavior and violent history. 24 Defendant Guzman 2 said she was the “classification officer who put him on the aggressive/and 25 violent inmate watch list.” Guzman 2 reported that the supervisor Cpl. Alva was well aware of 26 this inmate and his aggressive behavior. Sgt. Rivera is a defendant in an open and ongoing civil 27 rights action, case no. 1:24-cv-261 BAM and in other cases, was indifferent to Plaintiff’s safety 28 concerns. Plaintiff expressed how he consistently told the above listed defendants about his 1 safety concerns and how Defendants omissions were deliberate indifference and was going to get 2 someone assaulted. Sgt. Rivera was reported in detail the physical incidents and racist threats 3 made. The aggressive inmate watched Plaintiff convey his safety concerns to the sergeant. 4 On July 30, 2024, Plaintiff took his safety issued to defendant Cortes, who acknowledges 5 the facts that the issue was well documented with the daily logs and said that Defendants John 6 Doe 1 and John Doe 2 dropped the ball by their decision to move this inmate into a dorm setting. 7 Cortes agreed it was a serious risk but that supervisors who have full knowledge don’t do 8 anything, there were nothing she could do. 9 During this time, Plaintiff was a housing module porter where his job was to make sure 10 every inmate received a dinner tray and collect all trays to be sent to the kitchen for cleaning. On 11 August 1, 2024, the aggressive inmate took the dinner tray from an 83 year old elderly dormmate 12 who the aggressor referred to as a child molester. Plaintiff reported the incident to the module 13 officer. Plaintiff doing his job and following orders instantly intervened and took the tray to give 14 it back to the elderly cellmate. The aggressive inmate called Plaintiff a snitch and rushed Plaintiff, 15 physically assaulting him striking him in his face and ear. Plaintiff alleges that the attack has 16 permanently altered his life where he still hears sounds in his ear when he talks and popping 17 sounds when he chews which cause pain. 18 Plaintiff alleges that the Madera County Jail is a small institution with only 400 inmates. 19 As a result of Plaintiff’s legal activism, he is specifically targeted. Plaintiff alleges that 20 administrators inform new hired deputies and officers and officers who have worked for years, 21 and have meetings about Plaintiff and how to subject him to atypical treatment and hardships. 22 The defendant disregarded the repeated reports of safety concerns and retaliated against him for 23 his well litigated civil rights actions that have passed screening and are proceeding to trial. Each 24 defendant logged each incident and failed to take reasonable measures to prevent the risk of harm. 25 Plaintiff alleges that Defendants demonstrated a custom of discrimination against Plaintiff 26 through officer daily logs where any threat reported by other inmates in the housing module was 27 remedied immediately. Plaintiff alleges there was a meeting of the minds because Plaintiff 28 exercised his rights to seek redress through the courts and inmate grievance system. 1 The brutal attack Plaintiff suffered was a result of defendants’ failures were under the 2 command of Chief Tyson Pouge and are employees of Defendant Madera County. Plaintiff 3 alleges Sgt. Rivera, Cpl. Alva, Guzman 1, Guzman 2, Taylor, Shields, Cortes, John Doe 1 and 4 John Doe 2 violated California Title 15 and facility rules and regulations under sections 3271, 5 3269. These violations implement training and the omissions establish the failure to protect was 6 intentional. Plaintiff seeks supervisory liability in this action as to Sgt. Rivera and Cpl. Alva for 7 their personal participation where they both were contacted by defendants and Plaintiff to prevent 8 physical harm. The inaction by the supervisors resulted in Plaintiff being physically assaulted. 9 As remedies, Plaintiff seek compensatory, punitive, general, and nominal damages and 10 that defendants receive adequate training and supervisory training. 11 III. Discussion 12 Supervisory Liability 13 Liability may not be imposed on supervisory personnel for the actions or omissions of 14 their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons 15 v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 16 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 17 Supervisors may be held liable only if they “participated in or directed the violations, or 18 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 19 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. 20 Bennett, 567 F.3d 554, 570 (9th Cir. 2009). “The requisite causal connection may be established 21 when an official sets in motion a ‘series of acts by others which the actor knows or reasonably 22 should know would cause others to inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d at 23 570. Supervisory liability may also exist without any personal participation if the official 24 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 25 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 26 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other 27 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). When a defendant holds a supervisory 28 position, the causal link between such defendant and the claimed constitutional violation must be 1 specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 2 589 F.2d 438, 441 (9th Cir. 1978). 3 Plaintiff alleges that supervisory liability exists against Madera County, Chief Tyson 4 Pouge, Capt. Rodriguez, Sgt. Rivera, and Cpl. Alva because of their subjective knowledge and 5 intentional failure to their responsibilities for the assault, retaliation, harassment, tactics, 6 humiliation, physiological distress, fear and violation of Plaintiff’s rights. Plaintiff has not 7 alleged factual support that any supervisor, participated in or directed any constitutional violation 8 or that he implemented a policy so deficient that it was the moving force of any constitutional 9 violation, except as noted below. Plaintiff's allegations are conclusory that each supervisory 10 defendant “failed to protect,” Plaintiff from harm. Such conclusory allegations are insufficient to 11 state a claim for supervisory liability. Vague and conclusory allegations concerning the 12 involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Bd. 13 of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 14 To the extent Plaintiff alleges there is an “unwritten policy” or custom, that if a supervisor 15 were forced to move the aggressive inmate, then s/he would be forced to implement a group 16 punishment on the whole housing module, the Court declines to infer this “unwritten” 17 classification/disciplinary policy itself is a repudiation of the constitutional rights absent factual 18 support as to the specific policy, why is it violative and who is responsible for such a policy. 19 Plaintiff has been unable to cure this deficiency. 20 “A supervisor can be liable in his individual capacity for his own culpable action or 21 inaction in the training, supervision, or control of his subordinates[.]” Starr, 652 F.3d at 1208. 22 However, a “failure to train” theory can be the basis for a supervisor's liability in only limited 23 circumstances, such as where the failure amounts to deliberate indifference to the rights of 24 persons with whom the subordinates are likely to come into contact. See Canell v. Lightner, 143 25 F.3d 1210, 1213–14 (9th Cir. 1998). To impose liability under a failure to train theory, a plaintiff 26 must demonstrate the subordinate’s training was inadequate, the inadequate training was a 27 deliberate choice on the part of the supervisor, and the inadequate training caused a constitutional 28 violation. Id. at 1214; see also City of Canton, Ohio v. Harris, 489 U.S. 378, 391 (1989); Lee v. 1 City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001). “A pattern of similar constitutional 2 violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference 3 for purposes of failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citation omitted). 4 Plaintiff’s conclusory assertions that the supervisory defendants received his notices are 5 not sufficient to state a cognizable claim. Plaintiff’s recitation of the elements of a claim is 6 likewise not sufficient. Plaintiff has not demonstrated that any training was inadequate, that the 7 inadequate training was a deliberate choice on the part of the supervisory defendants, or that the 8 inadequate training caused the constitutional violation(s). 9 Monell Liability 10 Local governments are “persons” subject to liability under 42 U.S.C. § 1983 where 11 official policy or custom causes a constitutional tort, see Monell, 436 U.S. at 690; however, a city 12 or county may not be held vicariously liable for the unconstitutional acts of its employees under 13 the theory of respondeat superior, see Board of Cty. Comm’rs. of Bryan Cty. v. Brown, 520 U.S. 14 397, 403 (1997); Monell, 436 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 15 1995). Local governing bodies therefore may be sued directly under § 1983 for monetary, 16 declaratory or injunctive relief for the violation of federal rights. See Monell, 436 U.S. at 690. 17 They are absolutely immune from liability for punitive damages under § 1983, however. See City 18 of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). 19 To impose municipal liability under § 1983 for a violation of constitutional rights 20 resulting from governmental inaction or omission, a plaintiff must show: “(1) that he possessed a 21 constitutional right of which he or she was deprived; (2) that the municipality had a policy; (3) 22 that this policy amounts to deliberate indifference to the plaintiff’s constitutional rights; and (4) 23 that the policy is the moving force behind the constitutional violation.” Oviatt By and Through 24 Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 25 U.S. 378, 389 (1989) (internal quotation marks omitted). 26 A plaintiff can establish this “municipal liability” by: 27 1. Showing that an officer “committed the alleged constitutional violation pursuant to a 28 formal governmental policy or a longstanding practice or custom which constitutes the standard 1 operating procedure of the local governmental entity”; 2 2. Establishing that the officer who committed the constitutional tort “was an official with 3 final policy-making authority and that the challenged action itself thus constituted an act of 4 official governmental policy”; or 5 3. Proving that an official “with final policy-making authority ratified a subordinate's 6 unconstitutional decision or action and the basis for it.” 7 Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (internal citations and quotation 8 marks omitted). A complaint that simply recites the elements of a Monell claim is insufficient to 9 put a municipality on fair notice of the claims against it. White v. City of Vacaville, No. 2:12-cv- 10 00515-GEB-GGH, 2012 WL 1455221, at *4-6 (E.D. Cal. Apr. 26, 2012). 11 A local governmental entity may be liable if it has a “policy of inaction and such inaction 12 amounts to a failure to protect constitutional rights.” Lee v. City of Los Angeles, 250 F.3d 668, 13 681 (9th Cir. 2001) (quoting Oviatt, 954 F.2d at 1474). The custom or policy of inaction must be 14 the result of a conscious or deliberate choice to follow a course of action made from among 15 various alternatives by the official or officials responsible for establishing final policy with 16 respect to the subject matter in question. City of Canton, 489 U.S. at 389; Oviatt, 954 F.2d at 17 1477 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion)). 18 Plaintiff appears to challenge two “customs:” (1) underground custom of singling the 19 Plaintiff out and placing him in situation where harm may result, including a custom of 20 discrimination against Plaintiff through officer daily logs where any threat reported by other 21 inmates in the housing module was remedied immediately, and (2) an unwritten policy/or custom, 22 that if a supervisor were forced to move the aggressive inmate, then s/he would be forced to 23 implement a group punishment on the whole housing module with turning the building into 24 administrative segregation. 25 As to the first “custom,” Plaintiff alleges that there is a custom of harassing Plaintiff and 26 failing to protect him, and that Madera County has full knowledge of its officers’ retaliation 27 against Plaintiff. Plaintiff fails to state a claim because it is based on respondeat superior and not 28 on the actions or longstanding customs of Madera County which constitute standard operating 1 procedure. Plaintiff cannot turn an isolated failure to protect situation into a custom of the 2 Madera County. Plaintiff has not plead that the “custom” amounts to deliberate indifference to 3 the Plaintiff’s constitutional rights. 4 As to the second “custom” of the supervisor’s threat of group punishment if an inmate is 5 moved, Plaintiff has not satisfied Monell requirements. At a minimum, Plaintiff does not have a 6 constitutional right to protect others. In addition, Plaintiff cannot plead that this “custom” 7 amounts to deliberate indifference to the Plaintiff’s constitutional rights. 8 Plaintiff has not pleaded facts tending to show that a government policy, custom, usage, or 9 practice was the “moving force” behind the alleged violation of his Fourth Amendment 10 rights, see Monell, 436 U.S. at 690, 694. The amended complaint does not allow for a reasonable 11 inference that Madera had a “formal government policy” or “longstanding practice or custom 12 which constitutes [its] standard operating procedure.” See Gillette, 979 F.2d at 1346. Plaintiff's 13 conclusory allegations of a policy/custom do not support an inference that the practices were 14 widespread and so well settled as to constitute a custom or usage. Plaintiff's allegations merely 15 attempt to impose respondeat superior liability. Aside from his own experience, Plaintiff does not 16 reference any specific instances of unlawful conduct or events that form the basis for a culture of 17 inaction. Plaintiff has been unable to cure this deficiency. 18 Failure to Protect – Fourteenth Amendment 19 Plaintiff was a pretrial detainee at the county jail when the incident giving rise to his 20 second amended complaint occurred. Therefore, Plaintiff’s rights as a pretrial detainee, as 21 opposed to a convicted prisoner, arise under the Fourteenth Amendment instead of the Eighth 22 Amendment; however, the standard of review is largely the same. Castro v. County of Los 23 Angeles, 833 F.3d 1060, 1067-68 (9th Cir. 2016) (en banc) (under both the Eighth and Fourteenth 24 Amendments, the plaintiff must show that the defendants acted with deliberate indifference). As 25 a pretrial detainee, Plaintiff has the right to be protected from assault by other detainees. Castro, 26 833 F.3d at 1068. 27 The Ninth Circuit has analyzed such conditions of confinement claims under an objective 28 deliberate indifference standard. See Castro, 833 F.3d at 1071 (adopting objective deliberate 1 indifference standard based on Kingsley v. Hendrickson, 576 U.S. 389 (2015), to evaluate failure 2 to protect claim brought by pretrial detainee). That standard demands that: (1) the defendant made 3 an intentional decision with respect to the conditions under which the plaintiff was confined; (2) 4 those conditions put the plaintiff at substantial risk of suffering serious harm; (3) the defendant 5 did not take reasonable available measures to abate that risk, even though a reasonable officer in 6 the circumstances would have appreciated the high degree of risk involved—making the 7 consequences of the defendant’s conduct obvious; and (4) by not taking such measures, the 8 defendant caused the plaintiff’s injuries. Castro, 833 F.3d at 1071. 9 Liberally construing the allegations in the second amended complaint, Plaintiff states a 10 cognizable claim against Guzman 1, Guzman 2, Sheilds, Sgt. Rivera, and Cpl. Alva. Plaintiff 11 fails to state a cognizable claim against any other defendant. The second amended complaint fails 12 to aver that the other defendants were aware of facts from which the officer could infer that 13 Plaintiff was under a substantial risk of harm or had time to intervene to stop the particular attack. 14 Plaintiff lumps the remaining defendants together and alleges Plaintiff alerted some defendants to 15 a generalized fear of attack. Generalized fears of attack at not sufficient to state a claim. 16 “[S]peculative and generalized fears of harm at the hands of other prisoners do not rise to a 17 sufficiently substantial risk of serious harm to [an inmate’s] future health.” Williams v. Wood, 223 18 F. App'x 670, 671 (9th Cir. 2007) (citation omitted). A prison official need not “believe to a 19 moral certainty” that an inmate is at risk of harm “before [he] is obligated to take steps to prevent 20 such an assault,” but “he must have more than a mere suspicion that an attack will occur.” Berg v. 21 Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) (A “mere suspicion that an attack will occur” is not 22 enough to support a cognizable claim) (citation omitted). Each act by each defendant must be 23 viewed separately and not in combination with other defendants. Plaintiff’s broad allegation that 24 he was at risk from the transferred, violent inmate is too general and speculative to state a claim 25 that any defendant acted with deliberate indifference to Plaintiff's safety by bringing this inmate 26 into the module. 27 Retaliation 28 Allegations of retaliation against a prisoner's First Amendment rights to speech or to 1 petition the government may support a 1983 claim. Rizzo v. Dawson, 778 F.2d 5527, 532 (9th Cir. 2 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 3 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First Amendment 4 retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action 5 against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) 6 chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably 7 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 8 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 9 F.3d 1262, 1269 (9th Cir. 2009). 10 Plaintiff alleges that he filed civil lawsuits and filed grievances which are protected 11 conduct. But it is unclear who took an adverse action, because of this conduct, in that Plaintiff 12 does not allege that each of the specific defendants knew of and acted because of the protected 13 conduct. It appears the aggressive inmate was moved into a dormitory setting and not merely into 14 Plaintiff’s cell. Further, Plaintiff fails to allege that each of the defendant’s conduct chilled 15 Plaintiff’s First Amendment rights, that did not advance a legitimate correctional goal. Plaintiff 16 must allege facts for each element of a retaliation claim for each defendant. 17 Conspiracy 18 A civil conspiracy is a combination of two or more persons who, by some concerted 19 action, intend to accomplish some unlawful objective for the purpose of harming another which 20 results in damage. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999). 21 “Conspiracy is not itself a constitutional tort under § 1983,” and it “does not enlarge the nature of 22 the claims asserted by the plaintiff, as there must always be an underlying constitutional 23 violation.” Lacey v. Maricopa Cty., 693 F.3d 896, 935 (9th Cir. 2012) (en banc). For a section 24 1983 conspiracy claim, “an agreement or meeting of minds to violate [the plaintiff’s] 25 constitutional rights must be shown.” Woodrum v. Woodward Cty., 866 F.2d 1121, 1126 (9th Cir. 26 1989). To establish a cognizable claim for conspiracy under 42 U.S.C. § 1983, a plaintiff must 27 allege (1) the existence of an express or implied agreement among the defendants to deprive the 28 plaintiff of his constitutional rights, and (2) an actual deprivation of those rights resulting from 1 that agreement. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010). 2 Plaintiff's allegations of conspiracy under § 1983 fail to state a claim because his 3 allegations are conclusory and merely speculative. Plaintiff alleges that the aim of the conspiracy 4 was to increase Plaintiff’s suffering, to damage Plaintiff’s mental and physical health and retaliate 5 against him. Plaintiff’s conspiracy claim, if any, lacks specificity. Plaintiff’s suggestion of 6 conspiracy is speculative as he presents no facts to show a meeting of the minds to violate his 7 constitutional rights. Plaintiff cannot allege a “conspiracy” against a group of defendants without 8 alleging what each Defendants did or did not do which resulted in an actual deprivation of his 9 rights. Plaintiff does not provide any specific facts showing that any of the Defendants had an 10 agreement to violate his constitutional rights. He must link each defendant to the conspiracy and 11 an actual deprivation of those rights resulting from that agreement. 12 State Law Claims and Title 15/Prison Policy Violations 13 To the extent Plaintiff alleges state law claim, the Complaint does not allege that Plaintiff 14 complied with the exhaustion requirements of the Government Claims Act (“GCA”) as to his 15 pendent state law claims. Cal. Gov't Code §§ 905, 905.2, 910, 911.2, 945.4, 950–950.2. Under the 16 GCA, a claimant may not maintain a state law tort cause action for damages against a public 17 employee or “local public entity” unless he has first presented a written claim to the state Victim 18 Compensation and Government Claims Board, and the Board has acted on it. See Cal. Gov't.Code 19 §§ 900.4, 905, 905.2, 945.4, & 950.2. State law claims are subject to dismissal for failure to 20 comply with GCA. See Karim–Panahi v. LA. Police Dep't, 839 F.2d 621, 627 (9th Cir.1988). If 21 Plaintiff has not done so, he must submit any such claim “not later than six months after the 22 accrual of the cause of action.” See Cal. Gov't.Code § 911.2. Because Plaintiff does not 23 affirmatively allege compliance with the GCA, the Complaint facially fails to state a tort claim 24 for negligence. 25 To the extent Defendants are alleged to have failed to comply with applicable prison 26 regulations, rules, or policies, these deprivations do not support a claim under § 1983. Section 27 1983 only provides a cause of action for the deprivation of federally protected rights. See, e.g., 28 Nible v. Fink, 828 F. App'x. 463 (9th Cir. 2020) (violations of Title 15 of the California Code of 1 Regulations do not create private right of action); Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th 2 Cir. 2009) (explaining all section 1983 claims must be premised on violation of federal 3 constitutional right); Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (explaining state 4 departmental regulations, like CDCR operations manual, do not establish a federal constitutional 5 violation); Prock v. Warden, No. 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at *4 (E.D. Cal. 6 Oct. 8, 2013) (noting that several district courts have found no implied private right of action 7 under title 15 and stating that “no § 1983 claim arises for [violations of title 15] even if they 8 occurred.”); Parra v. Hernandez, No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. Cal. 9 Nov. 13, 2009) (granting motion to dismiss prisoner's claims brought pursuant to Title 15 of the 10 California Code of Regulations); Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW (PC), 11 2009 WL 1211372, at *9 (E.D. Cal. May 1, 2009) (holding that there is no private right of action 12 under Title 15 of the California Code of Regulations); Tirado v. Santiago, No. 1:22-cv-00724 13 BAM PC, 2022 WL 4586294, at *5 (E.D. Cal. Sept. 29, 2022), report and recommendation 14 adopted, No. 1:22-CV-00724 JLT BAM PC, 2022 WL 16748838 (E.D. Cal. Nov. 7, 2022) 15 (same). 16 Unknown Defendants 17 Plaintiff alleges Doe defendants and defendants identified as Guzman 1 and Guzman 2. 18 Plaintiff is advised that Guzman 1 and Guzman 2 defendants (i.e., unknown defendants) cannot be 19 served by the United States Marshal until Plaintiff has identified them as actual individuals and 20 amended his complaint to substitute names for Guzman 1 and Guzman 2. 21 IV. Conclusion and Recommendation 22 Based on the above, the Court finds that Plaintiff’s second amended complaint (ECF No. 23 16) states a cognizable claim against Defendants Guzman 1, Guzman 2,2 Sheilds, Sgt. Rivera, and 24 2 Plaintiff is advised that Defendants Guzman 1 and Guzman 2 act as John Doe defendants 25 (i.e., an unknown defendant) and cannot be served by the United States Marshal until Plaintiff has identified him or her as an actual individual. Plaintiff will be required to identify him or her with 26 enough information to locate the defendant for service of process. Plaintiff will be given the 27 “‘opportunity through discovery to identify the unknown [Doe] defendants.’ ” Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (quoting Gillespie, 629 F.2d at 642). Once the 28 identity of the Doe defendant is ascertained, Plaintiff must file a motion to amend his complaint 1 Cpl. Alva for failure to protect in violation of the Fourteenth Amendment. However, Plaintiff’s 2 second amended complaint fails to state any other cognizable claims for relief against any other 3 defendants. 4 It is HEREBY RECOMMENDED that: 5 1. This action proceed on Plaintiff’s second amended complaint against Defendants 6 Guzman 1, Guzman 2, Sheilds, Sgt. Rivera, and Cpl. Alva for failure to protect in 7 violation of the Fourteenth Amendment; and 8 2. All other claims and defendants be dismissed based on Plaintiff’s failure to state 9 claims upon which relief may be granted. 10 These Findings and Recommendation will be submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 12 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 13 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 14 Findings and Recommendation.” Objections, if any, shall not exceed fifteen (15) pages or 15 include exhibits. Exhibits may be referenced by document and page number if already in 16 the record before the Court. Any pages filed in excess of the 15-page limit may not be 17 considered. Plaintiff is advised that failure to file objections within the specified time may result 18 in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v. 19 Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 20 (9th Cir. 1991)). 21 IT IS SO ORDERED. 22

23 Dated: June 11, 2026 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24

25 26

27 only to substitute a name for John Doe so that service by the United States Marshal can be attempted. 28