Larry James Porter v. L. Yang, et al.

Opinion

1 2 3 4 5 8 9 LARRY JAMES PORTER, Case No. 1:25-cv-00311-JLT-BAM (PC) 10 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO CONDUCT LIMITED DISCOVERY AS 11 v. PREMATURE 12 L. YANG, et al., (ECF No. 18) 13 Defendants. FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN 15 (ECF No. 1)

16 FOURTEEN (14) DAY DEADLINE 17 18 I. Background 19 Plaintiff Larry James Porter (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action under 42 U.S.C. § 1983. 21 On November 3, 2025, the Court screened the complaint and found that Plaintiff stated a 22 cognizable claim against Defendant Sergeant Jane Doe for deliberate indifference to medical need 23 and conditions of confinement in violation of the Eighth Amendment and against the California 24 Department of Corrections and Rehabilitation (“CDCR”) for violation of the Americans with 25 Disabilities Act, but he failed to state any other cognizable claims for relief against any other 26 defendant. (ECF No. 10.) The Court ordered Plaintiff to either file an amended complaint or 27 notify the Court of his willingness to proceed only on the cognizable claims identified by the 28 Court. (Id.) On January 29, 2026, Plaintiff notified the Court that he does not wish to amend his 1 complaint and is willing to proceed only on his cognizable claims. (ECF No. 18.) 2 II. Motion for Limited Discovery 3 In his January 29, 2026 notice, Plaintiff also requests that the Court either (1) order CDCR 4 to provide Defendant Sergeant Jane Doe’s name for service; or (2) allow his suit to proceed to 5 discovery to allow him to secure Defendant Sergeant Jane Doe’s name so she may be served by 6 the Marshal. (ECF No. 18.) The Court construes Plaintiff’s request as a motion to conduct 7 limited discovery for the purpose of identifying Defendant Sergeant Jane Doe. 8 Plaintiff’s motion for discovery is premature and is denied without prejudice. Although 9 the Court has screened Plaintiff’s complaint and found that it states cognizable claims against 10 Defendant Sergeant Jane Doe and CDCR, the Court has not yet ordered that this action proceed 11 on those cognizable claims. If the Court orders that this action proceed on the cognizable claims, 12 then service on Defendant CDCR will proceed and the Court will set a separate deadline for 13 Plaintiff to provide the Court with further information as to the identity and location of Defendant 14 Sergeant Jane Doe. Further, any discovery request directed at another party, such as CDCR, may 15 be sent after service is ordered and discovery is opened in this case. 16 Accordingly, Plaintiff’s motion to conduct limited discovery, (ECF No. 18), is HEREBY 17 DENIED, without prejudice, as premature. 18 III. Findings and Recommendations 19 A. Screening Requirement and Standard 20 The Court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 22 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 23 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 24 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 25 A complaint must contain “a short and plain statement of the claim showing that the 26 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 27 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 28 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 1 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 2 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 3 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 4 To survive screening, Plaintiff’s claims must be facially plausible, which requires 5 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 6 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 7 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 8 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 9 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 10 B. Plaintiff’s Allegations 11 Plaintiff is currently housed at the Richard J. Donovan Correctional Facility in San Diego, 12 California. The events in the complaint are alleged to have occurred while Plaintiff was housed at 13 California Substance Abuse Treatment Facility (“SATF”). Plaintiff names as Defendants: (1) L. 14 Yang, correctional officer, (2) Jane Doe, correctional ADA Sergeant, (3) California Department 15 of Corrections and Rehabilitation (“CDCR”). The individual defendants are sued in their 16 individual and official capacities. 17 Plaintiff alleges deliberate indifference to serious medical needs and health and safety. 18 Plaintiff also allege violation of the Fourteenth Amendment Equal Protection Clause, violation of 19 the Americans with Disability Act (“ADA”) and Cal. Constitution Art. 1, §7(a) equal protection. 20 Defendant Yang is a correctional officer assigned as Floor Officer #2 in Building #1 in 21 Facility B. Defendant Yang was responsible for securing and collecting Plaintiff’s personal 22 property, separating all durable medical equipment (DME) and supplies consistent with 15 CCR § 23 3999.392 and the ADA as defined by the Armstrong Remedial Plan. Defendant Jane Doe is a 24 correctional Seargeant assigned to the Restricted Housing Unit (RHU) and the designated ADA 25 compliance Sergeant. This responsibility is to ensure subordinates and staff comply with 26 established guidelines regarding disability policies and procedures as required by CDCR and the 27 Clark and Armstrong Remedial Plan. Defendant Jane Doe was responsible for supervision of 28 subordinate Defendant L. Yang and for the care and control of Plaintiff’s safety and health. 1 The CDCR is legally responsible for its employees’ failure to comply with established 2 Plans, and policies that allow prisoners with disability to obtain and keep necessary assistive 3 devices (DMEs and equipment). This includes tracking and investigating and disciplining 4 employees of CDCR when members of Plaintiff’s class are not receiving access to services, 5 programs, activities under the Armstrong Remedial Plan and the ADA. Under Title II of the 6 ADA, CDCR is liable for the vicarious acts of its employees. 7 The deliberate refusal of Defendants L. Yang and Jane Doe Sergeant to accommodate 8 Plaintiff’s disability-related needs such as medical care is a denial of the benefits of the prison’s 9 services and programs or activities, from August 17, 2024 - September 3, 2024. Defendants acted 10 in accordance with CDCR policy with intentionally discrimination against Plaintiff and CDCR 11 failed to correct the discriminatory conduct. 12 Plaintiff alleges compliance with the Government Tort Claims Act. 13 Medical Needs and Disability 14 Plaintiff is a permanently disabled state prisoner in the Disability Placement Program 15 (DPP). Plaintiff’s disability is from severe back injuries while performing his assigned duties in 16 Vocational Masonry on July 6, 2021. Plaintiff has an Orthopedic, Neurological or medical 17 condition that substantially limits his ambulation, walking 100 yards and requires a lower bunk 18 and no stairs. 19 On January 21, 2024, Plaintiff was afforded disability accommodations, including a cane, 20 walker, disability vest, pressure reducing mattress, incontinence supplies, among other things. 21 Plaintiff suffers from hypertension, dry eyes syndrome causing pain, irritation and vison loss, skin 22 rashes and eczema and incontinent issues. Plaintiff is prescribed various medications for his 23 conditions. (ECF No. 1 at 16 of 30.) Plaintiff requires uninterrupted medical care and 24 management to avoid severe complications. 25 Events 26 On August 17, 2024, after an unrelated assault on Plaintiff by an inmate, Plaintiff was 27 reassigned to RHU. Defendant Yang was contacted and directed to collect and secure Plaintiff’s 28 personal property. Plaintiff contends a discriminatory intent and motive existed to deviate from 1 departmental policy. Defendant Yang was assigned to the same building, and is in allegiance and 2 camaraderie, with a Defendant (O. Rivas) in Plaintiff’s previous lawsuit (1:22-cv-105 KES CDB). 3 There is a culture existing at SATF to discriminate against those with disabilities. Defendant 4 Yang had prior knowledge of the previous lawsuit. Other unrelated incidents of hostility and acts 5 of partisanship towards Plaintiff, infers that Yang made a conscious decision to deprive Plaintiff 6 of his DME, medical supplies and medications. 7 Defendant Yang accessed Plaintiff’s DPP disability/accommodation summary through the 8 department’s strategic offender management systems (SOMS) prior to securing Plaintiff’s 9 personal property. Yang confiscated Plaintiff’s property and failed to separate and inventory all of 10 Plaintiff’s DME, medical supplies and medication to determine what Plaintiff would be allowed 11 to retain, in violation of CDCR policy 12 Plaintiff continuously complained he needed his DME, medical supplies and medications 13 but was ignored by staff including Yang. During an 18-day period, when deprived of his 14 supplies, Plaintiff suffered and had extreme pain, including vomiting, loss of 28 lbs., depression 15 and anxiety and hypertension, among other things. (ECF No. 1 ¶ 53.) Defendant Yang was 16 aware, through training provided to employees by the Armstrong Remedial Plan to act in 17 accordance with the CDCR policy. 18 Once in RHU after August 20, 2024, Plaintiff was interviewed by Defendant Jane Doe, 19 ADA Sergeant, compliance Sergeant. During the interview Plaintiff complained that Defendant 20 Yang deprived Plaintiff of his DME, medical supplies, and mediations on August 17, 2024 and 21 Plaintiff was in pain and other medical conditions he was feeling. (ECF No. 1 ¶¶ 60-64.) 22 Defendant Jane Doe dismissed Plaintiff’s complaints and said that Plaintiff needed to wait 10 23 days until he could receive his medications. She laughed and walked away concluding the 24 interview. 25 On September 3, 2024, Plaintiff talked again to Defendant Jane Doe and complained to 26 her again that nothing was being done to resolve his issues. She said “I haven’t forgot about 27 you!” and walked away laughing. She continued to ignore Plaintiff’s pleas for help, because he is 28 an old black man. Plaintiff suffered pain and incontinence, not able to get off the bunk for meals 1 and falling on the ground numerous times and reinjuring his back, and had an increase in blood 2 pressure. She did not summon medical staff to assist Plaintiff. Plaintiff lost 28 pounds in an 18- 3 day period. 4 Defendant Jane Doe failed to remedy the violations committed by her subordinate Yang 5 and directly participated in the violation by refusing to locate and secure Plaintiff’s DME, 6 medical supplies and medications. Defendant Doe’s duties as the ADA compliance Sergeant in 7 the RHU required that all DME and medical supplies were provided to Plaintiff. Defendant Jane 8 Doe knew Plaintiff was going to be transferred out of SATF on September 3, 2024 when she told 9 Plaintiff she had not forgotten about him. Plaintiff was sent to North Kern State Prison for an 10 overnight layover. Plaintiff was seen in R&R and Plaintiff complained about not having his 11 DME, medical Supplies and medications. Sister Merlin Alexander contacted the RHU 12 correctional counselor and complained of mistreatment and severity of Plaintiff’s hypertension. 13 Plaintiff eventually received his blood pressure medication about 12 days after he was placed in 14 the RHU. Plaintiff got his personal medical property once he arrived at RJD Correctional Facility 15 on Sept. 4, 2024. (ECF No. 1 ¶ 81.) Plaintiff was intentionally discriminated based on ADA 16 status. He was excluded from the feeding program, he was denied his incontinence related 17 services and supplies and had hypertension episodes and extreme weight loss. 18 Defendant CDCR is the State agency and through its plans and policies must comply with 19 ADA. The Armstrong remedial Plan and the Disability Placement Program implement the 20 guidelines to ensure nondiscrimination against inmates with disability. Disability Placement 21 Program applies to all institutions including SATF. Plaintiff contends that Defendants Yang and 22 Doe in their individual capacities acted in accordance with CDCR policy when they intentionally 23 discriminated against Plaintiff on account of his disabilities and CDCR failed to correct the 24 discriminatory conduct. The Armstrong Remedial Plan defines categories of disability and 25 issuance of Durable Medical Equipment. Section 3999.392 provides that an inmate transferred 26 from one institution to another shall be allowed their medical equipment and medical supplies. 27 During the period of August 17, 2024 through September 3, 2024, Plaintiff was denied 28 incontinence-related services and supplies. (ECF No. 1 ¶ 94.) Plaintiff complained to Defendant 1 Seargent Doe who should have provided a remedy. Both Yang and Doe failed to take Plaintiff’s 2 need for his equipment serious and took no alternative steps to at least summon medical staff. 3 Plaintiff asks for the Court to take judicial notice of the Armstrong Remedial Plan, and 4 this case of Porter v. Rivas, Case no. 1:22-cv-105 KES CDB. 5 Plaintiff alleges that based on these facts he states an Equal Protection claim against both 6 Yang and Doe Sergeant and also a state law Equal Protection claim. Plaintiff alleges that 7 intentional treatment was different for those who were not black and were not elderly. Plaintiff 8 alleges that he was discriminated against because he is black and elderly and sued defendant’s 9 coworker just months earlier. 10 Plaintiff alleges he was denied adequate food to maintain health when he complained that 11 he could not get off the bunk without dizzy spells, having fainting spells and fell down numerous 12 times trying to get meals. (ECF No. 1 ¶ 117.) Plaintiff contends he lost 28 pounds in 18 days and 13 was denied access by Defendants to its feeding program, service or activity while housed at RHU 14 during August 17-September 3, 2024. Defendant Doe Sergeant knew as the ADA coordinator, 15 that an inmate housed in the RHU, being mobility impaired, had a substantial risk of serious harm 16 by being deprived of food and was losing excessive weight in a short period of time. 17 Plaintiff alleges the following claims: (1) Eighth Amendment violation of deliberate 18 indifference to serious medical needs, (2) Eighth Amendment violation of deliberate indifference 19 to health and safety, (3) Equal Protection under the Fourteenth Amendment, (4) violation of the 20 ADA, (4) Cal. Constitution Art. I, §7(a) equal protection. 21 Plaintiff seeks compensatory and punitive damages. 22 C. Discussion 23 Plaintiff’s complaint fails to comply with Federal Rules of Civil Procedure 8 and fails to 24 state a cognizable claim under 42 U.S.C. § 1983, except as noted below. 25 Federal Rule of Civil Procedure 8 26 Pursuant to Rule 8, a complaint must contain “a short and plain statement of the claim 27 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed factual allegations 28 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 1 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must 2 set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on 3 its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual allegations 4 are accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556–57; Moss, 5 572 F.3d at 969. 6 Plaintiff’s complaint is not short. As explained below, Plaintiff’s complaint fails to state a 7 claim. Many of Plaintiff's allegations are conclusory and do not state what happened, when it 8 happened, or which defendant was involved. Plaintiff includes legal argument and citations in his 9 complaint, and it is difficult to follow. Plaintiff’s vague and conclusory allegations of medical 10 care provide no factual basis for this Court to draw a reasonable inference which of the named 11 defendants are liable for any misconduct alleged. A plaintiff suing multiple defendants must 12 allege the basis of his claim against each defendant to satisfy Rule 8(a)(2). 13 Eleventh Amendment 14 “The Eleventh Amendment grants a State immunity from suit in federal court by citizens 15 of other States, and by its own citizens as well.” Lapides v. Bd. Of Regents, 535 U.S. 613, 616 16 (2002) (citation omitted); see Wolfson v. Brammer, 616 F.3d 1045, 1065–66 (9th Cir. 2010) 17 (citation and quotation marks omitted). While “[t]he Eleventh Amendment does not bar suits 18 against a state official for prospective relief,” Wolfson, 616 F.3d at 1065–66, suits against the 19 state or its agencies are barred absolutely, regardless of the form of relief sought, e.g., Pennhurst 20 State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Buckwalter v. Nevada Bd. of 21 Medical Examiners, 678 F.3d 737, 740 n. 1 (9th Cir. 2012). 22 A state agency is entitled to the same Eleventh Amendment immunity enjoyed by the 23 State when a judgment against the agency “would have had essentially the same practical 24 consequences as a judgment against the State itself.” Lake Country Estates, Inc. v. Tahoe 25 Regional Planning Agency, 440 U.S. 391, 401 (1979). Accordingly, the California Department of 26 Corrections and Rehabilitation is a state agency, it generally is entitled to Eleventh Amendment 27 immunity from suit for damages. 28 Plaintiff may not pursue his claims for monetary damages against the named defendants in 1 their official capacities. “The Eleventh Amendment bars suits for money damages in federal 2 court against a state, its agencies, and state officials in their official capacities.” Aholelei v. Dep’t. 3 of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). However, the Eleventh 4 Amendment does not bar suits seeking damages against state officials in their personal capacities, 5 Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003), or 6 suits for injunctive relief brought against state officials in their official capacities, Austin v. State 7 Indus. Ins. Sys., 939 F.2d 676, 680 n.2 (9th Cir. 1991). Thus, Plaintiff may only proceed in this 8 action for monetary damages against defendants in their individual capacities. 9 Supervisory Liability 10 Insofar as Plaintiff is attempting to sue Defendant Jane Doe Sergeant, or any other 11 defendant, based solely upon his/her supervisory role, he may not do so. Liability may not be 12 imposed on supervisory personnel for the actions or omissions of their subordinates under the 13 theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 14 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 15 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 16 Supervisors may be held liable only if they “participated in or directed the violations, or 17 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 18 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. 19 Bennett, 567 F.3d 554, 570 (9th Cir. 2009). “The requisite causal connection may be established 20 when an official sets in motion a ‘series of acts by others which the actor knows or reasonably 21 should know would cause others to inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d at 22 570. Supervisory liability may also exist without any personal participation if the official 23 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 24 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 25 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other 26 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). When a defendant holds a supervisory 27 position, the causal link between such defendant and the claimed constitutional violation must be 28 specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 1 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement 2 of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 3 673 F.2d 266, 268 (9th Cir. 1982). 4 Plaintiff has not alleged factual support that any supervisor participated in or directed any 5 constitutional violation or that he “implemented a policy so deficient that it was the moving force 6 of any constitutional violation.” 7 Americans With Disabilities Act 8 The Americans with Disabilities Act provides, “no qualified individual with a disability 9 shall, by reason of such disability, be excluded from participation in or be denied the benefits of 10 the services, programs, or activities of a public entity, or be subjected to discrimination by any 11 such entity.” 42 U.S.C. § 12132. The ADA defines “qualified individual with a disability” as “an 12 individual with a disability who, with or without reasonable modifications to rules, policies, or 13 practices, the removal of architectural, communication, or transportation barriers, or the provision 14 of auxiliary aids and services, meets the essential eligibility requirements for the receipt of 15 services or the participation in programs or activities provided by a public entity.” Id. § 12131(2). 16 The Supreme Court has held that “public entity” includes state prisons. United States v. Georgia, 17 546 U.S. 151, 154 (2006) (citation omitted). To state a claim under the ADA, the plaintiff must 18 have been “improperly excluded from participation in, and denied the benefit of, a prison service, 19 program, or activity on the basis of his physical handicap.” Armstrong v. Wilson, 124 F.3d 1019, 20 1023 (9th Cir. 1997). In addition, “[t]o recover monetary damages under Title II of the ADA ... a 21 plaintiff must prove intentional discrimination on the part of the defendant,” and the standard for 22 intentional discrimination is at least deliberate indifference. Duvall v. County of Kitsap, 260 F.3d 23 1124, 1138 (9th Cir. 2001). 24 To the extent Plaintiff intends to sue the individual named defendants for violation of his 25 rights under the ADA, he may not “bring an action under 42 U.S.C. § 1983 against a State official 26 in her individual capacity to vindicate rights created by Title II of the ADA.” Vinson v. Thomas, 27 288 F.3d 1145, 1156 (9th Cir. 2002) (a plaintiff cannot sue state officials in their individual 28 capacity under § 1983 to vindicate rights created by Title II of the ADA or Section 504 of the 1 Rehabilitation Act). Instead, the proper defendant in an ADA action is the public entity 2 responsible for the alleged discrimination. See United States v. Georgia, 546 U.S. 151, 154, 126 3 S. Ct. 877, 163 L. Ed. 2d 650 (2006). In order to recover monetary damages, the plaintiff must 4 allege intentional discrimination under the “deliberate indifference” standard. Duvall v. Cty. of 5 Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001) (as amended). “Deliberate indifference requires both 6 knowledge that a harm to a federally protected right is substantially likely, and a failure to act 7 upon ... the likelihood.” Id. at 1139. This standard is not met “where a duty to act may simply 8 have been overlooked,” but rather “a failure to act must be a result of conduct that is more than 9 negligent[.]” Id. 10 Liberally construing the allegations in the complaint, as the Court must at this stage, 11 Plaintiff states a cognizable claim based on his allegation that he was denied access to “food 12 service” by Defendant Sergeant Doe, who Plaintiff told he was unable to attend food service and 13 Defendant Sergeant Doe saw Plaintiff was losing weight from not being able to attend food 14 service. See, e.g., Orr v. Cal. Highway Patrol, No. 2:14–585 WBS EFB, 2015 WL 848553 at *16 15 (E.D. Cal. Feb.26, 2015) (“Public entities are vicariously liable for the acts of their employees 16 under both acts.”). 17 Plaintiff fails to state any other claim. Plaintiff alleges that he did not get certain medical 18 equipment or medication, but he does not allege facts that show he was excluded from 19 participation in, or denied the benefits of, any service or programs offered by the prison because 20 of his disability. Plaintiff’s allegations that he was subjected to any type of discrimination by 21 reason of his disability are conclusory. Further, any allegations of inadequate medical care do not 22 state a claim under the ADA. Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“The ADA 23 does not create a remedy for medical malpractice.”); Simmons v. Navajo County, 609 F.3d 1011, 24 1022 (9th Cir. 2010) (“The ADA prohibits discrimination because of disability, not inadequate 25 treatment for disability.”), overruled in part on other grounds, Castro, 833 F.3d 1060; Bryant v. 26 Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“[The ADA] would not be violated by a prison's 27 simply failing to attend to the medical needs of its disabled prisoners.... The ADA does not create 28 a remedy for medical malpractice.”). 1 Eighth Amendment – Deliberate Indifference to Medical Care and Conditions of 2 Confinement 3 A prisoner’s claim of inadequate medical care constitutes cruel and unusual punishment in 4 violation of the Eighth Amendment where the mistreatment rises to the level of “deliberate 5 indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 6 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate 7 indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure 8 to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and 9 wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately 10 indifferent.” Jett, 439 F.3d at 1096. 11 A defendant does not act in a deliberately indifferent manner unless the defendant “knows 12 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 13 837 (1994). “Deliberate indifference is a high legal standard,” Toguchi v. Chung, 391 F.3d 1051, 14 1060 (9th Cir. 2004), and is shown where there was “a purposeful act or failure to respond to a 15 prisoner’s pain or possible medical need” and the indifference caused harm. Jett, 439 F.3d at 16 1096. In applying this standard, the Ninth Circuit has held that before it can be said that a 17 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 18 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 19 cause of action.” Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 20 429 U.S. at 105–06). Even gross negligence is insufficient to establish deliberate indifference to 21 serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 22 Further, a “difference of opinion between a physician and the prisoner—or between 23 medical professionals—concerning what medical care is appropriate does not amount to 24 deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. 25 Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard, 26 744 F.3d 1076, 1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir. 27 2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must 28 1 show that the course of treatment the doctors chose was medically unacceptable under the 2 circumstances and that the defendants chose this course in conscious disregard of an excessive 3 risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation 4 marks omitted). 5 The Eighth Amendment also protects prisoners from inhumane methods of punishment 6 and from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); 7 Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are 8 housed, prison officials have a duty to ensure that prisoners are provided adequate shelter, food, 9 clothing, sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th 10 Cir. 2000) (quotation marks and citations omitted). However, prison officials are liable under the 11 Eighth Amendment only if they demonstrate deliberate indifference to conditions posing a 12 substantial risk of serious harm to an inmate; and it is well settled that deliberate indifference 13 occurs when an official acted or failed to act despite his knowledge of a substantial risk of serious 14 harm. Farmer, 511 U.S. at 834, 841; Clem, 566 F.3d at 1181; Hearns, 413 F.3d at 1040 15 Plaintiff states a cognizable claim against Defendant Jane Doe Sergeant for deliberate 16 indifference to medical care, while Plaintiff was in RHU and deliberate indifference to Plaintiff’s 17 conditions of confinement regarding Plaintiff’s inability to get food and losing 18 lbs. 18 Plaintiff fails to state a cognizable claim against Defendant Yang. Plaintiff’s conclusory 19 allegations that Defendant Yang knew Plaintiff needed his medical supplies and medication is 20 insufficient. The allegations do not demonstrate that, unlike Defendant Jane Doe Sergeant, Yang 21 saw Plaintiff while Plaintiff was housed in RHU and spoke with Plaintiff about Plaintiff’s 22 medical needs or food requirements. 23 Equal Protection -Fourteenth Amendment and California Constitution 24 The Equal Protection Clause requires that persons who are similarly situated be treated 25 alike. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, (1985); Shakur v. 26 Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established by 27 showing that defendants intentionally discriminated against a plaintiff based on his membership 28 in a protected class, Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 1 702– 03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071,1082 (9th Cir. 2003), or that similarly 2 situated individuals were intentionally treated differently without a rational relationship to a 3 legitimate state purpose, Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 601–02 (2008); Village 4 of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 5 592 (9th Cir. 2008). 6 The Court finds that Plaintiff has not stated a cognizable equal protection claim. “[T]he 7 disabled do not constitute a suspect class” for equal protection purposes. Does 1–5 v. Chandler, 8 83 F.3d 1150, 1155 (9th Cir. 1996) (citing City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249). 9 While Plaintiff uses the word “discrimination” in his complaint, Plaintiff has not shown that he 10 was discriminated against because of his membership in any protected class. Nor has Plaintiff 11 shown that he was intentionally treated differently than other similarly situated inmates without a 12 rational relationship to a legitimate state purpose. Plaintiff offers that he is elderly and black, but 13 he does not support discrimination on these bases. Plaintiff’s conclusory statements about 14 discrimination do not suffice. Therefore, he has not stated any claim for a violation of his 15 Fourteenth Amendment rights. 16 Article I, Section 7(a) of the California Constitution, much like the Fourteenth 17 Amendment, provides that a “person may not be deprived of life, liberty, or property without due 18 process of law.” California's Due Process Clause is “identical in scope with the federal due 19 process clause.” Owens v. City of Signal Hill, 154 Cal.App.3d 123, 127 n. 2, 201 Cal.Rptr. 70 20 (1984); Botello v. Morgan Hill Unified Sch. Dist., 2009 WL 3918930 (N.D.Cal. Nov. 18, 2009) 21 (treating California Constitution's due process clause as identical to federal Constitutional due 22 process protection for purposes of evaluating a “danger creation” cause of action). 23 In an extensive and detailed opinion, the California Supreme Court has held that Article 1, 24 Section 7(a) does not create a private right of action for damages. Katzberg v. Regents of Univ. of 25 California, 58 P.3d 339, 342-58 (Cal. 2002). Therefore, to the extent Plaintiff is attempting to 26 bring a claim for monetary damages directly under that provision of the California Constitution, 27 his claim fails. Navarrette v. Wren, No. 3:22-CV-0006-LL-AHG, 2023 WL 3397382, at *5 (S.D. 28 Cal. May 11, 2023), report and recommendation adopted, No. 22CV006-LL-AHG, 2023 WL 1 8176084 (S.D. Cal. June 1, 2023). 2 Violation of Title 15 3 Most of Plaintiff’s claims are for violation of CDCR policies and procedures. To the 4 extent that any Defendant has not complied with applicable state statutes or prison regulations, 5 these deprivations do not support a claim under § 1983. Section 1983 only provides a cause of 6 action for the deprivation of federally protected rights. See, e.g., Nible v. Fink, 828 Fed. Appx. 7 463 (9th Cir. 2020) (violations of Title 15 of the California Code of Regulations do not create a 8 private right of action); Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) (section 1983 9 claims must be premised on violation of federal constitutional right); Prock v. Warden, No. 1:13- 10 cv-01572-MJS (PC), 2013 WL 5553349, at *11–12 (E.D. Cal. Oct. 8, 2013) (noting that several 11 district courts have found no implied private right of action under title 15 and stating that “no § 12 1983 claim arises for [violations of title 15] even if they occurred.”); Parra v. Hernandez, No. 13 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. Cal. Nov. 13, 2009) (granting motion to 14 dismiss prisoner's claims brought pursuant to Title 15 of the California Code of Regulations); 15 Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW (PC), 2009 WL 1211372, at *9 (E.D. 16 Cal. May 1, 2009) (holding that there is no private right of action under Title 15 of the California 17 Code of Regulations). 18 Due Process – Deprivation of Property 19 Prisoners have a protected interest in their personal property. Hansen v. May, 502 F.2d 20 728, 730 (9th Cir. 1974). An authorized, intentional deprivation of property is actionable under 21 the Due Process Clause. See Hudson v. Palmer, 468 U.S. 517, 532 n.13 (1984) (citing Logan v. 22 Zimmerman Brush Co., 455 U.S. 422, 435–36 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th 23 Cir. 1985). However, “an unauthorized intentional deprivation of property by a state employee 24 does not constitute a violation of the procedural requirements of the Due Process Clause of the 25 Fourteenth Amendment if a meaningful post deprivation remedy for the loss is available.” 26 Hudson, 468 U.S. at 533. 27 Plaintiff contends that Defendant Yang took his property in violation of remedial orders 28 and CDCR policy. As Defendant Yang’s conduct was an unauthorized deprivation of property, 1 due process is satisfied if there is a meaningful post-deprivation remedy available to Plaintiff. Id. 2 Plaintiff has an adequate post-deprivation remedy available under California law. Barnett v. 3 Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (citing Cal. Gov’t Code §§ 810–95). Therefore, 4 Plaintiff fails to allege a cognizable due process claim for the alleged deprivation of his property. 5 Conspiracy 6 It is unclear if Plaintiff is attempting to allege a conspiracy. To state a claim for 7 conspiracy under section 1983, Plaintiff must show the existence of an agreement or a meeting of 8 the minds to violate his constitutional rights, and an actual deprivation of those constitutional 9 rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir.2010); Franklin v. Fox, 312 F.3d 423, 441 (9th 10 Cir. 2001). “[T]o state a claim for conspiracy under § 1985, a plaintiff must first have a 11 cognizable claim under § 1983.” Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 930 (9th Cir. 12 2004) (citation omitted). 13 Here, Plaintiff’s fails to state a claim for conspiracy. Plaintiff has not adequately alleged a 14 meeting of the minds or a deprivation of his constitutional rights. Plaintiff conclusory and 15 speculative allegation the Defendant Yang acted as he did because his colleague was named in a 16 prior lawsuit by Plaintiff is insufficient to support a claim. 17 Armstrong Remedial Plan 18 A remedial plan or consent decree does not create a substantive right entitling Plaintiff to 19 sue. Rather, to the extent that plaintiff wishes to pursue an equitable claim based on defendants’ 20 violation of the Armstrong Remedial Plan, Plaintiff must pursue such claim through the consent 21 decree or class counsel. Frost v. Symington, 197 F.3d 348, 358–59 (9th Cir.1999); Crayton v. 22 Terhune, No. C 98-4386 CRB(PR), 2002 WL 31093590, *4 (N.D. Cal. Sept.17, 2002). If 23 Plaintiff wishes to pursue a damages claim, Plaintiff must allege facts sufficient to support a 24 claim that Defendants violated federal law, not merely that Defendants violated a remedial plan. 25 See Frost, 197 F.3d at 353. 26 Doe Defendants 27 Plaintiff names one doe defendant. “As a general rule, the use of ‘John Doe’ to identify a 28 defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Plaintiff is 1 advised that John Doe or Jane Doe defendants (i.e., unknown defendants) cannot be served by the 2 United States Marshal until Plaintiff has identified them as actual individuals and amended his 3 complaint to substitute names for John Doe or Jane Doe. 4 IV. Conclusion and Recommendation 5 Based on the above, the Court finds that Plaintiff’s complaint states a cognizable claim 6 against Defendant Jane Doe Sergeant for deliberate indifference to medical need and conditions 7 of confinement in violation of the Eighth Amendment and a claim against CDCR for violation of 8 the Americans with Disabilities Act. However, Plaintiff’s complaint fails to state any other 9 cognizable claims for relief against any other defendant. 10 Accordingly, it is HEREBY RECOMMENDED that: 11 1. This action proceed on Plaintiff’s complaint, filed March 4, 2025, (ECF No. 1), 12 against Defendant Jane Doe Sergeant for deliberate indifference to medical need and 13 conditions of confinement in violation of the Eighth Amendment and against 14 Defendant CDCR for violation of the Americans with Disabilities Act; and 15 2. All other claims and defendants be dismissed based on Plaintiff’s failure to state 16 claims upon which relief may be granted. 17 18 *** 19 These Findings and Recommendations will be submitted to the United States District 20 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 21 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 22 file written objections with the court. The document should be captioned “Objections to 23 Magistrate Judge’s Findings and Recommendations.” Objections, if any, shall not exceed 24 fifteen (15) pages or include exhibits. Exhibits may be referenced by document and page 25 number if already in the record before the Court. Any pages filed in excess of the 15-page 26 limit may not be considered. Plaintiff is advised that failure to file objections within the 27 specified time may result in the waiver of the “right to challenge the magistrate’s factual 28 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter 1 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 IT IS SO ORDERED. 3

4 Dated: February 4, 2026 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 5

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