Hawkins v. Pollard

• Court: District Court, S.D. California
• Decided: September 8, 2022
• Docket: 3:21-cv-01328
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 JEFF HAWKINS, Case No.: 21-cv-01328-JO-JLB PFN #AQE810, 13 REPORT AND Plaintiff, 14 RECOMMENDATION GRANTING v. DEFENDANTS’ MOTION TO 15 DISMISS MARCUS POLLARD, Warden; B.D. 16 PHILLIPS, Associate Warden; D. LEWIS, [ECF No. 17] 17 Associate Warden; GARCIA, Facility

Captain, 18 Defendants. 19 20 21 22 23 This Report and Recommendation is submitted to United States District Judge 24 Jinsook Ohta pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.3 of the Local Rules 25 of Practice for the United States District Court for the Southern District of California. 26 On July 23, 2021, Plaintiff Jeff Hawkins (“Plaintiff”), a state prisoner proceeding 27 pro se and in forma pauperis, filed his Complaint pursuant to 42 U.S.C. § 1983 against 28 Warden Marcus Pollard, Associate Wardens B.D. Phillips and D. Lewis, and Facility 1 Captain Garcia (collectively, “Defendants”). (ECF No. 1.) Now pending before the Court 2 and ready for decision is Defendants’ Motion to Dismiss. (ECF No. 17.) Plaintiff filed an 3 opposition to Defendants’ Motion to Dismiss (ECF No. 20), and Defendants filed a reply 4 (ECF No. 22). After a thorough review of Plaintiff’s Complaint, the parties’ motion and 5 opposition papers, and all supporting documents, and for the reasons discussed below, the 6 Court RECOMMENDS that the District Court GRANT Defendants’ Motion to Dismiss 7 (ECF No. 17), but grant Plaintiff leave to amend his Complaint. 8 I. BACKGROUND 9 Plaintiff alleges Defendants acted with deliberate indifference to his health and 10 safety in violation of the Eighth Amendment based on their failure to protect him from 11 contracting COVID-19 while he was incarcerated at Richard J. Donovan Correctional 12 Facility (“RJD”).2 (ECF No. 1 at 3–5.) 13 Specifically, Plaintiff claims he suffers from asthma and “chronic pulmonary lung 14 disease” which put him at an increased risk of serious disease or death if he contracted 15 COVID-19. (Id. at 3.) Plaintiff was infected with COVID-19 on December 8, 2020. (Id. 16 at 3, 35.) He contends Defendants provided inadequate protections from exposure to the 17 virus. (Id. at 3.) For example, Plaintiff claims Defendants issued poor quality face masks 18 and placed inmates that were infected with COVID-19 in housing units with non-infected 19 inmates, in violation of “the current public health orders to practice six feet social 20 distanc[ing].” (Id.) Defendants allowed inmates “to use showers [and] phones which were 21 also infected.” (Id.) Plaintiff observed RJD staff wearing their masks improperly. (Id.) 22 Defendants allowed inmates who tested positive for COVID-19 to serve food at the prison. 23 (Id. at 4.) RJD staff kept inmates locked in their cells for 24 hours a day with “no yard.” 24 25 26 1 All page citations in this Report and Recommendation refer to those automatically 27 generated by the CM/ECF system. 2 Plaintiff is currently confined at Santa Rita County Jail (“SRCJ”). (See ECF Nos. 7; 28 1 (Id.) Plaintiff had no access to disinfectant between December 5, 2020, and December 8, 2 2020. (Id.) When he finally received disinfectant, it smelled like urine and was ineffective 3 because it was watered down. (Id.) Cleaning supplies were “not strong enough to keep 4 people from contracting COVID-19.” (ECF No. 20 at 5.) Defendants “failed to provide 5 proper [personal protective equipment] until N-95 [masks] were issued.” (ECF No. 1 at 6 5.) “[L]iving conditions in [Plaintiff’s] cell were terrible although [he] kept [his] cell clean 7 with what cleaning supplies [Defendants] provided. (ECF No. 20 at 5.) Defendants “were 8 aware of what was going on . . . they just did nothing to prevent what was coming until 9 after it was there.” (Id.) When Plaintiff contracted COVID-19, Defendants left Plaintiff 10 “in the cell most of the time for dead with no medical attention whatsoever.” (ECF No. 1 11 at 3.) 12 Plaintiff argues these actions caused the COVID-19 outbreak in the housing unit 13 where Plaintiff was infected. (Id.) Plaintiff’s symptoms included “chest pain, bone aches, 14 [diarrhea], queasy most [recent], has chronic pulmonary lung disease, couldn’t smell or 15 eat. . . .” (Id.) Plaintiff states he filed two individual 602 inmate grievances: the first 16 grievance requested “release to home for high risk” due to COVID-19, and the second was 17 filed as an emergency grievance because he wanted an answer to his first grievance sooner. 18 (Id. at 3, 8–11.) Plaintiff states that neither grievance received a response. (Id. at 3.) 19 Plaintiff seeks “the maximum allowable amount” of monetary and punitive damages 20 for Defendants’ failure to protect him from contracting COVID-19. (Id. at 7.) Plaintiff 21 also seeks an injunction because he “would like the staff to stop being so forceful and be 22 more [lenient] to the need[s] of inmates. . . .” (Id.) 23 II. REQUEST FOR JUDICIAL NOTICE 24 As a preliminary matter, Defendants ask the Court to take judicial notice of three 25 exhibits submitted in support of their Motion to Dismiss: 26 Exhibit A – U.S. District Court, Sothern District (San Diego), Civil Docket for Case No. 3:21-cv-01328-JO-JLB; 27

28 /// 1 Exhibit B – Order Appointing Receiver, Plata v. Newsom, Case No. 01-CV- 01351-JST (N.D. Cal. Feb. 14, 2006) (ECF No. 473); and 2

3 Exhibit C – Relevant portions of a certified transcript of the video recording of Senate Public Safety Committee Senate Hearing on COVID-19 in 4 California State Prisons on July 1, 2020, published at 5 https://www.senate.ca.gov/media/senate-publicsafety-committee- 20200701/video (last visited Dec. 14, 2021). 6

7 (ECF No. 17-1 at 1.) 8 “Generally, district courts may not consider material outside the pleadings when 9 assessing the sufficiency of a complaint. . . .” Khoja v. Orexigen Therapeutics, Inc., 899 10 F.3d 988, 998 (9th Cir. 2018) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th 11 Cir. 2001), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 12 1119, 1125–26 (9th Cir. 2002)); see also Fed. R. Civ. P. 12(d) (explaining that if the court 13 considers other materials, a motion brought pursuant to Rule 12(b)(6) or (c) is converted 14 into a motion for summary judgment under Rule 56). There are two exceptions to this 15 general rule. The Court may, without converting the motion to dismiss to one for summary 16 judgment, “take judicial notice of matters of public record,” Khoja, 899 F.3d at 999 17 (quoting Lee, 250 F.3d at 689), and of “documents whose contents are alleged in a 18 complaint and whose authenticity no party questions, but which are not physically attached 19 to the pleading,” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other 20 grounds by Galbraith, 307 F.3d at 1125–26; see also Fed. R. Evid. 201. 21 Judicial notice under Federal Rule of Evidence 201 permits a court to take notice of 22 undisputed facts in matters of public record. See Khoja, 899 F.3d at 999. A court may not 23 take judicial notice of disputed facts contained in such public records. Id. A judicially 24 noticed fact must be one not subject to reasonable dispute in that it is either (1) generally 25 known within the territorial jurisdiction of the trial court or (2) capable of accurate and 26 ready determination by resort to sources whose accuracy cannot reasonably be questioned. 27 See Fed. R. Evid. 201(b). 28 /// 1 The Court finds Exhibits A, B, and C proper for judicial notice, as they are matters 2 of public record. See Jones v. Pollard, No. 21-cv-162-MMA-RBM, 2022 WL 706926, at 3 *4 (S.D. Cal. Mar. 9, 2022) (citing Hayes v. Woodford, 444 F. Supp. 2d 1127, 1136–37 4 (S.D. Cal. 2006) (Courts may take judicial notice of their own records, and may also take 5 judicial notice of other court proceedings if they “directly relate to matters before the 6 court”); In re Bare Escentuals, Inc. Sec. Litig., 745 F. Supp. 2d 1052, 1067 (N.D. Cal. 7 2010) (“The court may take judicial notice of the existence of unrelated court documents, 8 although it will not take judicial notice of such documents for the truth of the matter 9 asserted therein.”); Lopez v. Bank of Am., N.A., 505 F. Supp. 3d 961, 970–71 (N.D. Cal. 10 2020) (finding that publicly available congressional records, including transcripts of 11 congressional hearings, are proper for judicial notice)). However, any potentially disputed 12 facts contained within Exhibits B and C are not appropriate for judicial notice. “Defendants 13 appear to want this Court to take as true factual representations made within [the proffered 14 document] to draw related inferences, but the Court cannot do so because they go to the 15 heart of the Plaintiff’s allegations.” Harris v. Allison, No. 20-cv-09393-CRB, 2022 WL 16 2232525, at *3 (N.D. Cal. May 18, 2022) (citing Khoja, 899 F.3d at 999). The Court will 17 take judicial notice of the fact that a receiver was appointed to oversee the operation of the 18 medical system of the California Department of Corrections and Rehabilitation 19 (“CDCR”),3 but the Court will not take judicial notice of the manner in which that oversight 20 is conducted in practice or the relative liability of CDCR personnel. Therefore, the Court 21 GRANTS Defendants’ request as qualified by the Court. Accordingly, the Court takes 22 judicial notice of Exhibits A, B, and C referenced above, but not the potentially disputed 23 facts contained within Exhibits B and C. 24 /// 25 26 27 3 This is not disputed by Plaintiff, who acknowledges the same in his Opposition. 28 1 III. LEGAL STANDARDS 2 A. Motion to Dismiss for Failure to State a Claim 3 Federal Rule of Civil Procedure 8 requires that a complaint include a “short and plain 4 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 5 A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be 6 granted tests the legal sufficiency of the claims in the complaint. See Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 555 (2007). In ruling on a Rule 12(b)(6) motion to dismiss, the 8 court does not look at whether the plaintiff will “ultimately prevail but whether the 9 [plaintiff] is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 10 232, 236 (1974). The court may consider allegations contained in the pleadings, exhibits 11 attached to the complaint, and documents and matters properly subject to judicial notice. 12 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007); Roth 13 v. Garcia Marquez, 942 F.2d 617, 625 n.1 (9th Cir. 1991). 14 Ashcroft v. Iqbal sets forth a “two-pronged approach” for evaluating the sufficiency 15 of a complaint, whereby a court may first identify legal conclusions in the complaint not 16 entitled to an assumption of truth, and then analyze the remaining well-pled factual 17 allegations to determine whether the complaint states a plausible claim for relief. 556 U.S. 18 662, 678–79 (2009). “Threadbare recitals of the elements of a cause of action, supported 19 by mere conclusory statements” are not entitled to an assumption of truth. Id. “[D]etailed 20 factual allegations” are not required, but a complaint must contain “more than an 21 unadorned, the defendant-unlawfully-harmed-me accusation.” Id. Thus, “[w]hile legal 22 conclusions can provide the framework of a complaint, they must be supported by factual 23 allegations.” Id. at 679. At the second prong, the court will analyze those well-pled facts 24 that are entitled to the assumption of truth. Id. at 678. “A complaint must contain sufficient 25 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 26 at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the 27 plaintiff pleads factual content that allows the court to draw the reasonable inference that 28 the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). 1 The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 2 556 U.S. at 678–79; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). 3 “In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, 4 and reasonable inferences from that content, must be plausibly suggestive of a claim 5 entitling the plaintiff to relief.” Moss, 572 F.3d at 969 (quotations omitted). 6 B. Standards Applicable to Pro Se Litigants in Civil Rights Actions 7 With respect to an inmate who proceeds pro se, his factual allegations, “however 8 inartfully pleaded,” must be held “to less stringent standards than formal pleadings drafted 9 by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Erickson v. Pardus, 10 551 U.S. 89, 94 (2007) (reaffirming that this standard applies to pro se pleadings post- 11 Twombly). Thus, where a plaintiff appears pro se in a civil rights case, the Court must 12 construe the pleadings liberally and afford plaintiff any benefit of the doubt. Hebbe v. 13 Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, in giving liberal interpretation to a 14 pro se civil rights complaint, courts may not “supply essential elements of the claim that 15 were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 16 (9th Cir. 1982). “The plaintiff must allege with at least some degree of particularity overt 17 acts which defendants engaged in that support the plaintiff’s claim.” Jones v. Cmty. 18 Redevelopment Agency of Los Angeles, 733 F.2d 646, 649 (9th Cir. 1984) (internal 19 quotation omitted). 20 Before dismissing a pro se civil rights complaint for failure to state a claim, the 21 plaintiff should be given a statement of the complaint’s deficiencies and an opportunity to 22 cure. Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 624–25 (9th Cir. 1988). 23 Only if it is absolutely clear that the deficiencies cannot be cured by amendment should 24 the complaint be dismissed without leave to amend. Id.; see also James v. Giles, 221 F.3d 25 1074, 1077 (9th Cir. 2000). 26 IV. DISCUSSION 27 Defendants advance three arguments in seeking to dismiss Plaintiff’s Complaint. 28 1 violation because his Complaint is silent “as to how these Defendants failed to protect 2 Plaintiff from exposure and infection” and “about whether Defendants knew that Plaintiff 3 was at higher risk because he suffered from asthma and chronic pulmonary lung disease.” 4 (ECF No. 17 at 13–17.) Second, Defendants argue that they are entitled to qualified 5 immunity because Plaintiff cannot show they violated any “clearly established right to be 6 free from all COVID-19 exposure and infection.” (Id. at 18–20.) Finally, Defendants 7 argue Plaintiff’s demand for injunctive relief must be dismissed as moot because he is no 8 longer in custody at RJD. (Id. at 20–22.) For the reasons stated below, the Court agrees 9 that Plaintiff’s Complaint fails to allege facts sufficient to support a plausible Eighth 10 Amendment claim for relief as to any of the named Defendants. 11 Because Plaintiff is proceeding pro se in this civil rights case, the Court has a duty 12 “to construe the pleadings liberally and to afford [Plaintiff] the benefit of any doubt.” 13 Hebbe, 627 F.3d at 342 (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) 14 (en banc)). Although Plaintiff separates his Complaint into three counts, the gravamen of 15 his claims center on Defendants’ failure to protect him from contracting COVID-19 and 16 their alleged deliberate indifference to his health and safety.4 17 A. Failure to State a Claim 18 1. Applicable Law 19 The Eighth Amendment, which applies to the states through the Due Process Clause 20 of the Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments” 21 on those convicted of crimes. Wilson v. Seiter, 501 U.S. 294, 296–97 (1991). Conditions 22 of confinement may, consistent with the Constitution, be restrictive and harsh. See Rhodes 23 v. Chapman, 452 U.S. 337, 347 (1981). The Eighth Amendment requires, however, that 24 25 4 Although Plaintiff mentions “dental medical transfer” (which the Court construes as 26 “denial [of] medical transfer”) (see ECF No. 1 at 4), he alleges no facts related to this 27 complaint. The Court cannot find that Plaintiff has satisfied the pleading requirements of Rule 8 where a claim is not substantively addressed with any factual allegations in the body 28 1 prison officials ensure that inmates receive adequate food, clothing, shelter, and medical 2 care. Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005) (citations omitted). 3 A plaintiff who challenges conditions of confinement must essentially make two 4 showings to demonstrate a violation of the Eighth Amendment. Hearns, 413 F.3d at 1042. 5 First, the plaintiff must “make an objective showing that the deprivation was ‘sufficiently 6 serious’ to form the basis for an Eighth Amendment violation.” Id. (quoting Wilson, 501 7 U.S. at 298). Second, the plaintiff must make a subjective showing that the prison officials 8 at issue acted “with a sufficiently culpable state of mind.” Id. A plaintiff must show that 9 the prison officials at issue had actual knowledge of plaintiff’s basic human needs and 10 deliberately refused to meet those needs. Id. Finally, a plaintiff must also demonstrate that 11 the prison officials at issue caused the deprivation about which he complains. See Johnson 12 v. Duffy, 588 F.2d 740, 743–44 (9th Cir. 1978). 13 Where, like here, a plaintiff seeks to hold individual defendants personally liable for 14 damages, the causation inquiry between the deliberate indifference and the Eighth 15 Amendment deprivation requires a very individualized approach which accounts for the 16 duties, discretion, and means of each defendant. Sweet v. Lucine, 2002 WL 31855365, at 17 *4 (N.D. Cal. 2002), aff’d, 76 Fed. Appx. 133 (9th Cir. 2003) (citing Leer v. Murphy, 844 18 F.2d 628, 633 (1988)). The prisoner must set forth specific facts as to each individual 19 defendant’s deliberate indifference. Id. (citing Leer, 844 F.2d at 633–34). There must be 20 an affirmative link between a defendant’s actions and the claimed deprivation. See Rizzo 21 v. Goode, 423 U.S. 362 (1976). 22 2. Analysis 23 Among other things, Plaintiff alleges that inmates that were infected with COVID- 24 19 were placed in housing units with non-infected inmates (ECF No. 1 at 3), and that 25 inmates who tested positive for COVID-19 served food to non-infected inmates at the 26 prison. (Id. at 4.) “[T]here is no question that an inmate can face a substantial risk of 27 serious harm in prison from COVID-19 if a prison does not take adequate measures to 28 counter the spread of the virus. Courts have long recognized that conditions posing an 1 elevated chance of exposure to an infectious disease can pose a substantial risk of serious 2 harm.” Chunn v. Edge, 465 F. Supp. 3d 168, 200 (E.D.N.Y 2020). While Plaintiff’s 3 allegations lack precision—such as whether any infected inmates were actually housed 4 with Plaintiff himself or served Plaintiff his food—construing these and other allegations 5 in Plaintiff’s favor, they are sufficient to plead an objective risk of substantial harm. See, 6 e.g., Sanford v. Eaton, No. 20-cv-00792-BAM (PC), 2021 WL 1172911, at *7 (E.D. Cal. 7 Mar. 29, 2021) (“The transmissibility of the COVID-19 virus in conjunction with 8 Plaintiff’s living conditions, which he alleges were overcrowded and poorly ventilated, are 9 sufficient to satisfy the objective prong, i.e., that Plaintiff was ‘incarcerated under 10 conditions posing a substantial risk of serious harm.’”). 11 However, there are no factual allegations which plausibly allege that these individual 12 Defendants had actual knowledge of Plaintiff’s basic human needs and deliberately refused 13 to meet those needs. See Williams v. Pollard, No. 21-cv-0055-CAB-BGS, 2022 WL 14 184552, at *10–11 (S.D. Cal. Jan. 19, 2022) (dismissing individual defendants where the 15 plaintiff failed to include factual allegations which showed that they “actually drew an 16 inference that [p]laintiff faced a substantial risk to his health and safety and were 17 deliberately indifferent to that risk.”) In fact, other than in the “Parties” section of the 18 Complaint form where the Defendants are identified by name and title (ECF No. 1 at 2), 19 none of the Defendants is mentioned individually again in the entire Complaint. All 20 conditions and circumstances complained of are ascribed in conclusory and general fashion 21 to “the Defendants.” The pleading standard required to overcome a Rule 12(b)(6) motion 22 to dismiss “demands more than an unadorned, the-defendant-unlawfully-harmed-me 23 accusation.” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. “A pleading that 24 offers ‘labels and conclusions’ or ‘a formalistic recitation of the elements of a cause of 25 action’” or “tenders ‘naked assertion(s)’ devoid of ‘further factual enhancement,’” does not 26 survive a Rule 12(b)(6) motion to dismiss. Iqbal, 556 U.S. at 678, quoting Twombly, 550 27 U.S. at 555. 28 /// 1 Accordingly, because Plaintiff has failed to allege deliberate indifference by 2 Defendants, he has failed to plead a cognizable Eighth Amendment claim. Therefore, the 3 Court RECOMMENDS that Defendants’ Motion to Dismiss be GRANTED with leave 4 to amend.5 See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court 5 should not dismiss a pro se complaint without leave to amend unless ‘it is absolutely clear 6 that the deficiencies of the complaint could not be cured by amendment.’”), quoting Akhtar 7 v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). 8 B. Injunctive Relief 9 1. Applicable Law 10 Federal courts are courts of limited jurisdiction, and as a preliminary matter, the 11 court must have before it an actual case or controversy. City of Los Angeles v. Lyons, 461 12 U.S. 95, 102 (1983); Valley Forge Christian Coll. v. Ams. United for Separation of Church 13 and State, Inc., 454 U.S. 464, 471 (1982). If a court does not have an actual case or 14 controversy before it, it has no power to hear the matter in question. Lyons, 461 U.S. at 15 102. In the context of prisoner civil rights litigation, if a prisoner challenges his conditions 16 of confinement and seeks injunctive relief, transfer to another prison generally renders the 17 request for injunctive relief moot absent some evidence of an expectation of being 18 transferred back. Andrews v. Cervantes, 493 F.3d 1047, 1053 n. 5 (9th Cir. 2007). 19 2. Analysis 20 As articulated by the Ninth Circuit in Wiggins, claims for non-monetary relief 21 brought under 42 U.S.C. § 1983 are moot if the prisoner-plaintiff is no longer subject to 22 23 24 5 In light of the foregoing, the Court does not reach Defendants’ additional arguments 25 related to qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If no constitutional right would have been violated were the allegations established, there is no 26 necessity for further inquiries concerning qualified immunity.”); County of Sacramento v. 27 Lewis, 523 U.S. 833, 841 n.5 (1998) (“[T]he better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has 28 1 the alleged illegal conduct. Wiggins v. Rushen, 760 F.2d 1009 (9th Cir. 1985). Here, 2 Plaintiff’s claim for injunctive relief is subject to dismissal pursuant to this holding. In 3 Wiggins, a prisoner brought an action under 42 U.S.C. § 1983 claiming that the access to 4 the law library at California Training Facility at Soledad was unconstitutionally inadequate. 5 Id. at 1010. While the case was pending, the prisoner was transferred to another prison. 6 Id. Defendants then filed a motion to dismiss the case for mootness, which was denied by 7 the district court. Id. The Ninth Circuit reversed, holding that since the prisoner had been 8 transferred and was no longer subject to the illegal activity, his complaint for an injunction 9 was moot. Id. Similarly, Plaintiff here has been transferred from the custody of RJD to 10 the custody of SRCJ and is no longer subject to any alleged illegal conduct at RJD—such 11 as the prison’s staff being too “forceful.” (ECF Nos. 1 at 7; 7; 17-2 at 2 ⁋ 4.) 12 Because there is neither a reasonable expectation nor demonstrated probability that 13 Plaintiff will return to the custody of RJD, his request for non-monetary relief is moot. See 14 Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam) (concluding prisoner’s 15 claims for injunctive relief were moot because prisoner was transferred to a different 16 facility); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (concluding prisoner’s “claim 17 that he might be transferred back to Calipatria some time in the future [was] ‘too 18 speculative’ to prevent mootness”). Accordingly, the Court recommends that Plaintiff’s 19 claim for injunctive relief be dismissed as moot without leave to amend, so long as he is 20 not in RJD custody. 21 V. CONCLUSION 22 For the reasons stated above, the Court RECOMMENDS that Defendants’ Motion 23 to Dismiss (ECF No. 17) be GRANTED. However, because it is not clear that the 24 Complaint’s deficiencies cannot be cured by amendment, the Court recommends that 25 Plaintiff’s Eighth Amendment claim against Defendants be dismissed without prejudice 26 and with leave to amend. 27 IT IS ORDERED that no later than October 4, 2022, any party to this action may 28 1 || be captioned “Objections to Report and Recommendation.” 2 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 3 Court and served on all parties no later than October 14, 2022. 4 The parties are advised that failure to file objections within the specified time may 5 || waive the right to raise those objections on appeal of the Court’s order. Turner v. Duncan, 6 F.3d 449, 455 (9th Cir 1998); Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir 1991). 7 IT IS SO ORDERED. 8 Dated: September 7, 2022 -

n. Jill L. Burkhardt 10 ited States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28