(PC) Burghardt v. Borges

• Court: District Court, E.D. California
• Decided: January 26, 2021
• Docket: 1:17-cv-01433
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA 10

11 DARRYL BURGHARDT, 1:17-cv-01433-AWI-GSA-PC

12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE 13 v. DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM 14 L. BORGES, et al., (ECF No. 24.)

15 Defendants. OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS 16

19 20 I. BACKGROUND 21 Darryl Burghardt (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action pursuant to 42 U.S.C. § 1983. On October 25, 2017, Plaintiff filed 23 the Complaint commencing this action. (ECF No. 1.) On July 27, 2018, the court screened the 24 Complaint and issued an order dismissing the Complaint for violation of Rules 8 and 18(a) of the 25 Federal Rules of Civil Procedure, with leave to amend. (ECF No. 12.) On August 29, 2018, 26 Plaintiff filed the First Amended Complaint. (ECF No. 13.) 27 On July 18, 2019, the court screened the First Amended Complaint and entered findings 28 and recommendations, recommending that Plaintiff’s medical and excessive force claims against 1 Defendants Borges, Renteria, Montoya, Osuna, Gomez, and Gonzales be dismissed for failure to 2 state a claim, with leave to amend, and that all other claims and Defendants be dismissed as 3 unrelated claims under Rule 18(a). (ECF No. 18.) On August 20, 2020, the district judge adopted 4 the findings and recommendations. (ECF No. 21.) Plaintiff was granted thirty days to file a 5 Second Amended Complaint not exceeding 25 pages. (ECF No. 22.) On September 11, 2020, 6 Plaintiff filed the Second Amended Complaint which is now before the court for screening. (ECF 7 No. 24.) Local Rule 230(l). 8 II. SCREENING REQUIREMENT 9 The court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 11 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 12 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 13 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 14 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 15 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 16 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 17 A complaint is required to contain “a short and plain statement of the claim showing that 18 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 19 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 20 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 21 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 22 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 23 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 24 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 25 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 26 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 27 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 28 plausibility standard. Id. 1 III. SUMMARY OF SECOND AMENDED COMPLAINT 2 The events at issue in the Second Amended Complaint allegedly occurred at Corcoran 3 State Prison (CSP) in Corcoran, California, where Plaintiff is currently incarcerated in the 4 custody of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff names 5 as defendants Correctional Officer (C/O) L. Borges, C/O J. Renteria, C/O J. Guerrero, Sergeant 6 F. Montoya, Gonzales (LVN), D. Osuma (LVN), C/O J. Gomez, K. Cribbs (Appeals 7 Coordinator), D. Goree (CCII), Captain R. Broomfield, M. Sexton (Chief Deputy Warden), 8 Lieutenant (Lt.) A.V. Johnson, Sergeant T. Candia, Lt. A. Delacruz, J. C. Smith (Associate 9 Warden), Sergeant D. B. Hernandez, Lt. J. E. Silva, A. Pacillas (CCII), Captain R. Pimentel 10 (Appeals Examiner), C. Hammond (Appeals Examiner), J. A. Zamora (Chief Appeals 11 Coordinator), Grimsley (Law Librarian), E. Bender (Senior Law Librarian), S. Wortman (Vice 12 Principal), Van Klaveren (Principal), N. Zavala (Mailroom Staff Supervisor), J. Bryant 13 (Mailroom Staff), V. Lopez (Mailroom Staff), D. Overley (AW), Captain K. Pearson, Captain 14 J. Keener, Captain R. Godwin, and K. J. Allen (Appeals Examiner). 15 Prior Screening Order (ECF No. 21.) 16 On August 20, 2020, the court dismissed Plaintiff’s claims for excessive force, assault, 17 and battery against defendants Borges and Renteria, and for inadequate medical care against 18 defendants Montoya, Osuma, Gomez, and Gonzales for failure to state a claim, with leave to 19 amend. (ECF No. 21 at 2 ¶2.) The court also dismissed all other claims in the First Amended 20 Complaint as unrelated under Rule 18(a), without prejudice to filing new and different cases to 21 bring the unrelated claims. Plaintiff’s claims for retaliation, conspiracy, improper processing of 22 appeals, improper RVR hearings, verbal threats and harassment, due process violations, adverse 23 conditions of confinement, interference with mail, cover-up, and making false reports were 24 dismissed as unrelated claims under Rule 18(a), and Defendants C/O J. Guerrero, K. Cribbs 25 (Appeals Coordinator), D. Goree (CCII), Captain R. Broomfield, Lt. A.V. Johnson, Sergeant T. 26 Candia, Lt. A. Delacruz, J. C. Smith (Associate Warden), Sergeant D. B. Hernandez, Lt. J. E. 27 Silva, A. Pacillas (CCII), Captain R. Pimentel (Appeals Examiner), C. Hammond (Appeals 28 /// 1 Examiner), and J. A. Zamora (Chief Appeals Coordinator) were dismissed from this case, based 2 on Plaintiff’s violation of Rule 18(a), without prejudice to filing new cases against them. 3 Defendants and Claims in Second Amended Complaint 4 In the Second Amended Complaint, Plaintiff again names all of the defendants who were 5 dismissed from this case, and again brings those claims that were dismissed in violation of Rule 6 18(a). Plaintiff is not permitted to bring back these dismissed claims and defendants in the 7 Second Amended Complaint. 8 Plaintiff also adds new defendants to the Second Amended Complaint that were not 9 named in the First Amended Complaint. Plaintiff brings claims against defendants Grimsley 10 (Law Librarian), E. Bender (Senior Law Librarian), S. Wortman (Vice Principal), Van Klaveren 11 (Principal), N. Zavala (Mailroom Staff Supervisor), J. Bryant (Mailroom Staff), V. Lopez 12 (Mailroom Staff), D. Overley (AW), Captain K. Pearson. Captain J. Keener, Captain R. Godwin, 13 and K.J. Allen (Appeals Examiner). The court finds the claims against these new defendants to 14 be unrelated to the excessive force and medical claims that Plaintiff was granted leave to amend 15 in the previous screening order. The newly-added defendants and the claims against them do not 16 belong in the Second Amended Complaint and should be dismissed under Rule 18(a).1 17 Thus, the claims remaining for the court’s screening of the Second Amended Complaint 18 are Plaintiff’s claims for excessive force against defendants Borges and Renteria, and for 19 inadequate medical care against defendants Montoya, Osuma, Gomez, and Gonzales. All of 20 Plaintiff’s other claims should be dismissed from the Second Amended Complaint as unrelated 21 claims under Rule 18(a). 22 23 1 A plaintiff may not proceed in one action on a myriad of unrelated claims against different defendants. “The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a 24 claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against 25 an opposing party.’ Thus multiple claims against a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different 26 defendants belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison 27 Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” George v. Smith, 507 F.3d 605, 607 (7th 28 Cir. 2007). 1 Plaintiff’s Allegations of Excessive Force and Inadequate Medical Care 2 Plaintiff’s allegations follow, as written in the Second Amended Complaint. 3 “On 11-4-2013, at CSP-COR, on facility 4A, while L. Borges & J. Renteria were 4 escorting Plaintiff back to Plaintiff’s cell (4A2L-43) from the 4A2[L] Small Management Yard 5 (SMY) aka exercise cages, at Plaintiff’s cell-front L. Borges influenced J. Renteria to help L. 6 Borges as L. Borges pepper sprayed & battered Plaintiff. E. Montoya showed up to the scene 7 soon afterwards questioning the matter & had Plaintiff taken to the 4A2L rotunda to be medically 8 evaluated by D. Osuma but after Plaintiff requested to be provided with additional adequate 9 medical treatment for his injuries, D. Osuma deprived Plaintiff and falsified what Plaintiff 10 informed D. Osuma about the incident on a Medical Report of Injury or Unusual Occurrence 11 (7219) form. Plaintiff was then taken to the 4A2L B-Section shower cell with the shower water 12 already running to decontaminate from the pepper spray Plaintiff endured but although the 13 shower water was running, F. Montoya refused to remove the mechanical restraints Plaintiff was 14 secured in so he could fully decontaminate from such pepper spray. Plaintiff stressed to fully 15 decontaminate & get adequate medical care yet, D. Osuma did not see to Plaintiff doing so & so 16 F. Montoya just had Plaintiff escorted from the 4A2L B-Section shower cell to Plaintiff’s 17 assigned cell, 4A2L-43. In it, shortly afterwards, Plaintiff required medical attention but J. 18 Gomez procrastinated in seeing to Plaintiff receiving such care. Plaintiff was eventually escorted 19 from his cell to the 4A2L rotunda where he was evaluated by D. Osama again but to no avail and 20 J. Gomez had Plaintiff placed under a regular food tray restriction aka paper tray status. Shortly 21 afterwards, Plaintiff turned in a Health Care Services Request (7362) Form to D. Osuma for the 22 medical office or sick call box but she seen to it never being processed or honored. Some time 23 later that evening (on 11-4-13), L. Borges, J. Renteria, J. Gomez, D. Osuma, & E. Montoya 24 falsified incident reports against Plaintiff as a cover up to justify the altercation or put them in 25 the clear. The next day on 11-5-13, at the cell-front of 4A2L-43, Plaintiff was still in need of 26 medical care for the 11-4-13 injuries he sustained, therefore he signaled Gonzales as they were 27 passing by & explained Plaintiff’s issues to her. Plaintiff showed Gonzales Plaintiff’s injuries & 28 turned in another 7362 form to Gonzales concerning such event but she hurried off & deliberately 1 refused to treat Plaintiff or have him treated & have the 7362 form processed to act in concert 2 with D. Osuma against Plaintiff.” (2nd Amend. Comp., ECF No. 24 at 14-16.) 3 Plaintiff requests monetary damages, injunctive relief, and declaratory relief. 4 IV. PLAINTIFF’S CLAIMS 5 The Civil Rights Act under which this action was filed provides:

6 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 7 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 8 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 9 10 42 U.S.C. § 1983. 11 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 12 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 13 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 14 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 15 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 16 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 17 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 18 under color of state law and (2) the defendant deprived him of rights secured by the Constitution 19 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 20 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 21 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 22 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 23 which he is legally required to do that causes the deprivation of which complaint is made.’” 24 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 25 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 26 established when an official sets in motion a ‘series of acts by others which the actor knows or 27 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 28 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 1 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 2 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 3 1026 (9th Cir. 2008). 4 A. Excessive Force 5 “What is necessary to show sufficient harm for purposes of the Cruel and Unusual 6 Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . .” Hudson, 7 503 U.S. at 8. “The objective component of an Eighth Amendment claim is . . . contextual and 8 responsive to contemporary standards of decency.” Id. (internal quotation marks and citations 9 omitted). The malicious and sadistic use of force to cause harm always violates contemporary 10 standards of decency, regardless of whether or not significant injury is evident. Id. at 9; see also 11 Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard 12 examines de minimis uses of force, not de minimis injuries)). However, not “every malevolent 13 touch by a prison guard gives rise to a federal cause of action.” Id. at 9. “The Eighth 14 Amendment’s prohibition of cruel and unusual punishments necessarily excludes from 15 constitutional recognition de minimis uses of physical force, provided that the use of force is not 16 of a sort ‘repugnant to the conscience of mankind.” Id. at 9-10 (internal quotations marks and 17 citations omitted). 18 “[W]henever prison officials stand accused of using excessive physical force in violation 19 of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was 20 applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to 21 cause harm.” Id. at 7. “In determining whether the use of force was wanton and unnecessary, it 22 may also be proper to evaluate the need for application of force, the relationship between that 23 need and the amount of force used, the threat reasonably perceived by the responsible officials, 24 and any efforts made to temper the severity of a forceful response.” Id. (internal quotation marks 25 and citations omitted). “The absence of serious injury is . . . relevant to the Eighth Amendment 26 inquiry, but does not end it.” Id. 27 Plaintiff fails to state a claim against defendants Borges and Renteria for use of excessive 28 force in violation of the Eighth Amendment. In the court’s prior screening order issued on July 1 18, 2019, the court advised Plaintiff that his allegations of excessive force in the First Amended 2 Complaint were not sufficient to state a claim for use of excessive force. The court advised 3 Plaintiff of the deficiencies in his claim: “Plaintiff has not alleged facts explaining the 4 circumstances of the escort, such as where and why it happened, how Plaintiff acted, the extent 5 of force used, and Plaintiff’s injuries to him were caused by the force, and how each of the named 6 Defendants personally acted against Plaintiff to violate his rights.” (ECF No. 18 at 19: 3-6.) 7 Plaintiff has not corrected any of those deficiencies in the Second Amended Complaint. 8 Plaintiff alleges only the following excessive force allegations against defendants Borges and 9 Renteria in the Second Amended Complaint: 10 “On 11-4-2013, at CSP-COR, on facility 4A, while L. Borges & J. Renteria were 11 escorting Plaintiff back to Plaintiff’s cell (4A2L-43) from the 4A2[L] Small 12 Management Yard (SMY) aka exercise cages, at Plaintiff’s cell-front L. Borges 13 influenced J. Renteria to help L. Borges as L. Borges pepper sprayed & battered 14 Plaintiff.” 15 (2d Amd Comp., ECF No. 24 at 14-15.) These allegations do not sufficiently explain the 16 circumstances of the escort, where and why it happened, how Plaintiff acted, the extent of force 17 used, Plaintiff’s injuries caused by the force, or how each of the two Defendants – Borges and 18 Renteria – personally acted against Plaintiff to violate his rights. Plaintiff’s conclusory 19 allegations that “Borges influenced J. Renteria to help L. Borges as L. Borges pepper sprayed & 20 battered Plaintiff” do not describe force that is greater than de minimus, or clarify what is meant 21 by “pepper sprayed & battered.” As such, the court is unable to evaluate the need for application 22 of force, the relationship between that need and the amount of force used, the threat reasonably 23 perceived by the responsible officials, or any efforts made to temper the severity of a forceful 24 response. Therefore, Plaintiff’s allegations are insufficient to state a claim for excessive force. 25 B. Medical Claim - Eighth Amendment 26 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 27 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 28 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part 1 test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 2 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury 3 or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need 4 was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 5 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 6 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown 7 by “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm 8 caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference 9 may be manifested “when prison officials deny, delay or intentionally interfere with medical 10 treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. 11 Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to 12 further harm in order for the prisoner to make a claim of deliberate indifference to serious medical 13 needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 14 407 (9th Cir. 1985)). 15 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 16 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 17 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but 18 that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If 19 a prison official should have been aware of the risk, but was not, then the official has not violated 20 the Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of 21 Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of medical malpractice or 22 negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment.” 23 Id. at 1060. “[E]ven gross negligence is insufficient to establish a constitutional violation.” Id. 24 (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)). 25 “A difference of opinion between a prisoner-patient and prison medical authorities 26 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337, 27 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the course 28 of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . 1 that they chose this course in conscious disregard of an excessive risk to plaintiff’s health.” 2 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 3 In applying this standard, the Ninth Circuit has held that before it can be said that a 4 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 5 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 6 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980), citing 7 Estelle, 429 U.S. at 105-06. “ [A] complaint that a physician has been negligent in diagnosing 8 or treating a medical condition does not state a valid claim of medical mistreatment under the 9 Eighth Amendment. Medical malpractice does not become a constitutional violation merely 10 because the victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 11 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin, 974 F.2d 1050, overruled on other grounds by 12 WMX Techs., Inc., 104 F.3d at 1136 (en banc) (internal quotations omitted)). In order to state a 13 claim for violation of the Eighth Amendment, Plaintiff must allege sufficient facts to support a 14 claim that the named defendants “[knew] of and disregard[ed] an excessive risk to [Plaintiff’s] 15 health . . . .” Farmer, 511 U.S. at 837. 16 Plaintiff alleges that after he was injured, he was taken to the rotunda to be medically 17 evaluated by D. Osuma (LVN), but when Plaintiff requested to be provided with additional 18 medical treatment, D. Osuma denied his request. Plaintiff also alleges that defendant Sergeant 19 F. Montoya refused to remove Plaintiff’s mechanical restraints, making it difficult to fully 20 decontaminate Plaintiff from the pepper spray. Plaintiff also alleges that C/O J. Gomez 21 procrastinated in seeing that Plaintiff received needed medical care, and defendant D. Osuma 22 never processed Plaintiff’s request for medical care. Plaintiff also alleges that he informed 23 defendant Gonzales (LVN) that he needed medical care, but she hurried off, deliberately refusing 24 to treat Plaintiff, and did not have the 7362 medical request form processed. 25 Plaintiff’s allegations against Defendants are vague and conclusory. Plaintiff fails to 26 allege facts showing that any of the Defendants knew Plaintiff was at serious risk of substantial 27 harm to his health. Plaintiff has not explained the extent of his injuries or how each named 28 defendant personally acted in violation of Plaintiff’s rights. 1 Accordingly, the court finds that Plaintiff fails to state a cognizable Eighth Amendment 2 medical claim against any of the Defendants. 3 C. Relief Requested 4 Besides monetary damages, Plaintiff requests declaratory and injunctive relief. 5 Plaintiff’s request for declaratory relief is subsumed by Plaintiff’s damages claim. See 6 Rhodes, 408 F.3d at 565-66 n.8 (because claim for damages entails determination of whether 7 officers’ alleged conduct violated plaintiff’s rights, the separate request for declaratory relief is 8 subsumed by damages action); see also Fitzpatrick v. Gates, No. CV 00-4191-GAF (AJWx), 9 2001 WL 630534, at *5 (C.D. Cal. Apr. 18, 2001) (“Where a plaintiff seeks damages or relief 10 for an alleged constitutional injury that has already occurred declaratory relief generally is 11 inappropriate[.]”) Therefore, Plaintiff is not entitled to declaratory relief in this case. 12 Plaintiff also requests that Defendants’ employment by the CDCR be terminated. Any 13 award of equitable relief is governed by the Prison Litigation Reform Act, which provides in 14 relevant part: 15 “The court shall not grant or approve any prospective relief unless the 16 court finds that such relief is narrowly drawn, extends no further than necessary 17 to correct the violation of the Federal right, and is the least intrusive means 18 necessary to correct the violation of the Federal right. The court shall give 19 substantial weight to any adverse impact on public safety or the operation of a 20 criminal justice system caused by the relief.” 18 U.S.C. § 3626(a)(1)(A). 21 22 Terminating Defendants’ employment would not remedy the past violation of Plaintiff's 23 constitutional rights, and therefore is not narrowly drawn to correct the alleged past violations. 24 Based on the nature of the claims at issue in this action, which involve past conduct, Plaintiff is 25 not entitled to injunctive relief and is therefore limited to seeking money damages for the 26 violations of his federal rights. 27 Plaintiff is also advised that the Prison Litigation Reform Act provides that “[n]o Federal 28 civil action may be brought by a prisoner confined in jail, prison, or other correctional facility, 1 for mental and emotional injury suffered while in custody without a prior showing of physical 2 injury.” 42 U.S.C. § 1997e(e). The physical injury “need not be significant but must be more 3 than de minimis.” Oliver, 289 F.3d at 627 (back and leg pain and canker sore de minimis); see 4 also Pierce v. County of Orange, 526 F.3d 1190, 1211-13 (9th Cir. 2008) (bladder infections and 5 bed sores, which pose significant pain and health risks to paraplegics such as the plaintiff, were 6 not de minimis). The physical injury requirement applies only to claims for mental or emotional 7 injuries and does not bar claims for compensatory, nominal, or punitive damages. Id. at 630. 8 V. CONCLUSION AND RECOMMENDATIONS 9 For the reasons set forth above, the court finds that Plaintiff fails to states any cognizable 10 claims in the Second Amended Complaint against any of the Defendants. Therefore, the court 11 shall recommend that this case be dismissed, with prejudice, for failure to state a claim. 12 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give 13 leave to amend when justice so requires.” Here, the court is persuaded that Plaintiff is unable to 14 allege any facts, based upon the circumstances he challenges, that would state a cognizable claim 15 under section 1983. “A district court may deny leave to amend when amendment would be 16 futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013). The court finds that the 17 deficiencies outlined above are not capable of being cured by amendment, and therefore further 18 leave to amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 19 1122, 1127 (9th Cir. 2000). 20 Accordingly, IT IS HEREBY RECOMMENDED that: 21 1. This case be dismissed, with prejudice, for failure to state a claim; and 22 2. The Clerk be directed to close this case. 23 These findings and recommendations will be submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 25 after the date of service of these findings and recommendations, Plaintiff may file written 26 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 27 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 28 specified time may result in waiver of the right to appeal the district court’s order. Wilkerson v. 1 Wheeler, 772 F.3d 834, 839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 2 1394 (9th Cir. 1991)). 3 IT IS SO ORDERED. 4

5 Dated: January 26, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6

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