1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JESUS CHIPREZ, Case No. 1:21-cv-00668-DAD-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THE FEDERAL CLAIMS BE 13 v. DISMISSED, WITH PREJUDICE, FOR 14 WARDEN, et al., FAILURE TO STATE A CLAIM AND THE COURT DECLINE TO EXERCISE 15 Defendants. SUPPLEMENTAL JURISDICTION OVER STATE LAW CLAIM 16 (ECF No. 15) 17 FOURTEEN (14) DAY DEADLINE 18
19 Plaintiff Jesus Chiprez (“Plaintiff”) is a state prisoner proceeding pro se and in in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint was 21 screened, and Plaintiff was granted leave to amend. Plaintiff’s first amended complaint, filed on 22 August 17, 2021, is before the Court for screening. (Doc. 15.) 23 I. Screening Requirement and Standard 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 27 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 28 1 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 2 A complaint must contain “a short and plain statement of the claim showing that the 3 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 4 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 7 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 8 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 9 To survive screening, Plaintiff’s claims must be facially plausible, which requires 10 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 11 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 12 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 13 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 14 II. Plaintiff’s Allegations 15 Plaintiff is currently housed at California Substance Abuse Treatment Facility (“CSATF”) 16 in Corcoran, California, where the events in the complaint are alleged to have occurred. Plaintiff 17 names the following defendants: (1) V. Marquez, Correctional Officer, CSATF, and (2) N. Tyler, 18 Hearing Official, Lieutenant. 19 On Monday August 3, 2020, at 10:45, Defendant Marquez stopped at Plaintiff’s cell door 20 and told Plaintiff and his cellmate to move the curtain from her visibility. Plaintiff obeyed her 21 direct order and put a towel to block the incoming light from hitting Plaintiff’s face. At 3 a.m. on 22 August 4, 2020, Defendant Marquez knocked on the window and told them to take the towel 23 down and flashed the light in Plaintiff’s face. He obeyed her direct order, and “she quickly 24 flashed her light down south,” but Plaintiff laid back down as he pulled the towel down. As she 25 left, he called her “fat ass.” An hour later, Plaintiff was taken to a dog cage. “I explained this to 26 Lt. Williams and asked him so at what time was I masterbating [sic]?” Plaintiff alleges 27 Defendant Marquez knows he sleeps naked because of his lower back ache and even the elastic 28 1 on boxers hurts his back. Plaintiff was in the dog cage for 5 ½ hours then taken to Ad-Seg with 2 no paper work or lock up order. Plaintiff received three rules violations reports, including one for 3 indecent exposure without prior convictions. Plaintiff was in Ad-seg for two months. 4 Plaintiff alleges that his two inmate witnesses were not allowed for his defense at the 5 hearing and the investigative employee did not ask them Plaintiff’s questions. Plaintiff told the 6 hearing officer, N. Tyler, that Defendant Marquez contradicted herself on questions 1 and 4 of his 7 list of questions in that she said he was “sitting up,” when her RVR said Plaintiff was laying 8 down. Plaintiff contends Defendant Marquez was lying about the incident. N. Tyler found 9 Plaintiff guilty because Plaintiff had a DA referral pending. Plaintiff told Defendant Tyler that 10 Plaintiff was not issued a lock up order. Plaintiff alleges that his listed questions for inmates 11 Abreu and Alvarez, his cellmate, were not asked. 12 As remedies, Plaintiff seek to remove the RVRs from his record and seeks $750,000 in 13 damages. III. Discussion 14 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to 15 state a cognizable claim upon which relief may granted. Despite being provided the relevant 16 pleading and legal standards, Plaintiff has been unable to cure the deficiencies in the complaint. 17 A. Federal Rule of Civil Procedure 8 18 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 19 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed 20 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 21 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation 22 omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to 23 relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570, 24 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are not. Id.; 25 see also Twombly, 550 U.S. at 556–557. 26 Although Plaintiff's complaint is relatively short, it is not a plain statement of his claims. 27 As a basic matter, the complaint does not clearly state what happened, when it happened or who 28 1 was involved. For instance, Plaintiff fails to allege facts of whether he is claiming a violation for 2 being detained in the “dog cage.” Plaintiff has been unable to cure this deficiency. 3 B. False Rules Violation Report and Disciplinary Hearing 4 It appears Plaintiff’s main complaint is a Due Process violation for being falsely accused 5 of improper conduct. 6 Prisoners do not have a liberty interest in being free from false accusations of misconduct. 7 The filing of a false Rules Violation Report by a prison official against a prisoner is not a per se 8 violation of the prisoner's constitutional rights. See Muhammad v. Rubia, 2010 WL 1260425, at 9 *3 (N.D. Cal., Mar. 29, 2010), aff'd, 453 Fed. App'x 751 (9th Cir.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JESUS CHIPREZ, Case No. 1:21-cv-00668-DAD-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THE FEDERAL CLAIMS BE 13 v. DISMISSED, WITH PREJUDICE, FOR 14 WARDEN, et al., FAILURE TO STATE A CLAIM AND THE COURT DECLINE TO EXERCISE 15 Defendants. SUPPLEMENTAL JURISDICTION OVER STATE LAW CLAIM 16 (ECF No. 15) 17 FOURTEEN (14) DAY DEADLINE 18
19 Plaintiff Jesus Chiprez (“Plaintiff”) is a state prisoner proceeding pro se and in in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint was 21 screened, and Plaintiff was granted leave to amend. Plaintiff’s first amended complaint, filed on 22 August 17, 2021, is before the Court for screening. (Doc. 15.) 23 I. Screening Requirement and Standard 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 27 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 28 1 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 2 A complaint must contain “a short and plain statement of the claim showing that the 3 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 4 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 5 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 7 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 8 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 9 To survive screening, Plaintiff’s claims must be facially plausible, which requires 10 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 11 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 12 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 13 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 14 II. Plaintiff’s Allegations 15 Plaintiff is currently housed at California Substance Abuse Treatment Facility (“CSATF”) 16 in Corcoran, California, where the events in the complaint are alleged to have occurred. Plaintiff 17 names the following defendants: (1) V. Marquez, Correctional Officer, CSATF, and (2) N. Tyler, 18 Hearing Official, Lieutenant. 19 On Monday August 3, 2020, at 10:45, Defendant Marquez stopped at Plaintiff’s cell door 20 and told Plaintiff and his cellmate to move the curtain from her visibility. Plaintiff obeyed her 21 direct order and put a towel to block the incoming light from hitting Plaintiff’s face. At 3 a.m. on 22 August 4, 2020, Defendant Marquez knocked on the window and told them to take the towel 23 down and flashed the light in Plaintiff’s face. He obeyed her direct order, and “she quickly 24 flashed her light down south,” but Plaintiff laid back down as he pulled the towel down. As she 25 left, he called her “fat ass.” An hour later, Plaintiff was taken to a dog cage. “I explained this to 26 Lt. Williams and asked him so at what time was I masterbating [sic]?” Plaintiff alleges 27 Defendant Marquez knows he sleeps naked because of his lower back ache and even the elastic 28 1 on boxers hurts his back. Plaintiff was in the dog cage for 5 ½ hours then taken to Ad-Seg with 2 no paper work or lock up order. Plaintiff received three rules violations reports, including one for 3 indecent exposure without prior convictions. Plaintiff was in Ad-seg for two months. 4 Plaintiff alleges that his two inmate witnesses were not allowed for his defense at the 5 hearing and the investigative employee did not ask them Plaintiff’s questions. Plaintiff told the 6 hearing officer, N. Tyler, that Defendant Marquez contradicted herself on questions 1 and 4 of his 7 list of questions in that she said he was “sitting up,” when her RVR said Plaintiff was laying 8 down. Plaintiff contends Defendant Marquez was lying about the incident. N. Tyler found 9 Plaintiff guilty because Plaintiff had a DA referral pending. Plaintiff told Defendant Tyler that 10 Plaintiff was not issued a lock up order. Plaintiff alleges that his listed questions for inmates 11 Abreu and Alvarez, his cellmate, were not asked. 12 As remedies, Plaintiff seek to remove the RVRs from his record and seeks $750,000 in 13 damages. III. Discussion 14 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to 15 state a cognizable claim upon which relief may granted. Despite being provided the relevant 16 pleading and legal standards, Plaintiff has been unable to cure the deficiencies in the complaint. 17 A. Federal Rule of Civil Procedure 8 18 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 19 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed 20 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 21 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation 22 omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to 23 relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570, 24 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are not. Id.; 25 see also Twombly, 550 U.S. at 556–557. 26 Although Plaintiff's complaint is relatively short, it is not a plain statement of his claims. 27 As a basic matter, the complaint does not clearly state what happened, when it happened or who 28 1 was involved. For instance, Plaintiff fails to allege facts of whether he is claiming a violation for 2 being detained in the “dog cage.” Plaintiff has been unable to cure this deficiency. 3 B. False Rules Violation Report and Disciplinary Hearing 4 It appears Plaintiff’s main complaint is a Due Process violation for being falsely accused 5 of improper conduct. 6 Prisoners do not have a liberty interest in being free from false accusations of misconduct. 7 The filing of a false Rules Violation Report by a prison official against a prisoner is not a per se 8 violation of the prisoner's constitutional rights. See Muhammad v. Rubia, 2010 WL 1260425, at 9 *3 (N.D. Cal., Mar. 29, 2010), aff'd, 453 Fed. App'x 751 (9th Cir. 2011) (“[A] prisoner has no 10 constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which 11 may result in the deprivation of a protected liberty interest. As long as a prisoner is afforded 12 procedural due process in the disciplinary hearing, allegations of a fabricated charge fail to state a 13 claim under § 1983.”) (citations omitted); Harper v. Costa, 2009 WL 1684599, at *2-3 (E.D. Cal., June 16, 2009), aff'd, 393 Fed. App'x 488 (9th Cir. 2010) (“Although the Ninth Circuit has not 14 directly addressed this issue in a published opinion, district courts throughout California ... have 15 determined that a prisoner's allegation that prison officials issued a false disciplinary charge 16 against him fails to state a cognizable claim for relief under § 1983.”). Plaintiff fails to state a 17 claim for the purportedly false accusations by Defendant Marquez. 18 The Due Process Clause of the Fourteenth Amendment protects prisoners from being 19 deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). 20 “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of 21 rights due a defendant in such proceedings does not apply.” Wolff, 418 U.S. at 556. The minimum 22 procedural requirements that must be met in such proceedings are: (1) written notice of the 23 charges; (2) at least 24 hours between the time the prisoner receives written notice and the time of 24 the hearing, so that the prisoner may prepare his defense; (3) a written statement by the fact 25 finders of the evidence they rely on and reasons for taking disciplinary action; (4) the right of the 26 prisoner to call witnesses in his defense, when permitting him to do so would not be unduly 27 hazardous to institutional safety or correctional goals; and (5) legal assistance to the prisoner 28 1 where the prisoner is illiterate or the issues presented are legally complex. Id. at 563–71. As long 2 as the Wolff requirements are met, due process has been satisfied. Walker v. Sumner, 14 F.3d 3 1415, 1420 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 4 (1995). In addition, “some evidence” must support the decision of the hearing officer, 5 Superintendent v. Hill, 472 U.S. 445, 455 (1985), and the evidence must have some indicia of 6 reliability, Cato v. Rushen, 824 F.2d 703, 705 (9th Cir. 1987). The “some evidence” standard is 7 not particularly stringent, and the relevant inquiry is whether “there is any evidence in the record 8 that could support the conclusion reached ....” Hill, 472 U.S. at 455–56 (emphasis added). 9 Plaintiff does not allege factual support that that his disciplinary action failed to comply 10 with the Wolff elements. There was some evidence to support the guilt finding. Defendant 11 Marquez said she saw him masturbating and issued a report to that effect. Moreover, Plaintiff's 12 insistence on the invalidity of the guilt finding does not state a claim for relief. The decision 13 rendered on a disciplinary charge must be supported by “some evidence” in the record. Superintendent v. Hill, 472 U.S. 445, 455-56 (1985). Plaintiff merely alleges she was lying. 14 However, false reports do not support a claim for a constitutional violation in this context. 15 Plaintiff alleges his witnesses were not questioned. However, from the exhibits attached 16 to the amended complaint, the hearing officer, possibly Defendant Tyler, deemed the questions 17 Plaintiff wanted to ask the inmates as irrelevant. (see e.g., Doc. 15, p. 15 (“Q1: Do you sleep 18 with your head towards the back of the cell?; A1: SHO deemed irrelevant.” (“Q3: Do we straddle 19 the toilet to urinate?; A3: SHO deemed irrelevant.”).) Plaintiff’s due process right was satisfied 20 where the questions Plaintiff wanted to ask were considered and deemed irrelevant to the 21 proceedings. 22 As to any due process claim regarding Administrative Segregation, prisoners do not have 23 a liberty interest in remaining housed in the general prison population. Hernandez v. Constable, 24 2020 WL 2145387, at *2 (E.D. Cal. Feb. 21, 2020), report and recommendation adopted, 2020 25 WL 2126893 (E.D. Cal. May 5, 2020) (citing Smith v Noonan, 992 F.3d 987, 989 (9th Cir. 1993); 26 McFarland v. Cassady, 779 F.2d 1426, (9th Cir. 1986)). “Typically, administrative segregation in 27 and of itself does not implicate a protected liberty interest.” Serrano v. Francis, 345 F.3d 1071, 28 1 1078 (9th Cir. 2003). “[W]hen prison officials initially determine whether a prisoner is to be 2 segregated for administrative reasons due process only requires the following procedures: Prison 3 officials must hold an informal nonadversary hearing within a reasonable time after the prisoner 4 is segregated. The prison officials must inform the prisoner of the charges against the prisoner or 5 their reasons for considering segregation. Prison officials must allow the prisoner to present his 6 views.” Toussaint v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986) (footnote omitted), 7 abrogated on other grounds, Sandin v. Connor, 515 U.S. 472 (1995). Here, Plaintiff was 8 provided a hearing on the charges and found guilty. 9 C. Eighth Amendment Claim 10 Plaintiff may be attempting to allege an Eighth Amendment claim for the time he was in 11 the holding cage. 12 The Eighth Amendment prohibits “the infliction of cruel and unusual punishments on 13 those convicted of crimes.” Wilson v. Seiter, 501 U.S. 294, 296-97 (1991) (citation and internal quotation marks omitted). Prison officials have a duty to provide “humane conditions of 14 confinement,” and “the minimal civilized measure of life's necessities[ ]” – including adequate 15 shelter. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted); Foster v. Runnels, 554 16 F.3d 807, 812 (9th Cir. 2009) (citing id.). A prison official violates the Eighth Amendment when: 17 (1) an inmate is incarcerated under conditions posing a substantial risk of serious harm; and (2) 18 the prison official deliberately disregards the risk by failing to take reasonable measures to abate 19 it. Farmer, 511 U.S. at 847; Hearns v. Terhune, 413 F.3d 1036, 1040-42 (9th Cir. 2005). 20 Plaintiff’s five-hour placement in a holding cell fails to state a claim. See Stafford v. 21 Doss, No. 2:16-CV-1403-JAM-DMC, 2021 WL 3563490, at *12 (E.D. Cal. Aug. 12, 2021) 22 (Plaintiff's four-hour placement in an administrative segregation holding cell does not rise to the 23 level of an Eighth Amendment violation due to the short duration of the placement). In Frost, the 24 Ninth Circuit concluded that “although Frost complains about the...conditions in the temporary 25 holding cell, he has not shown that such circumstances ultimately deprived him of the ‘minimal 26 civilized measures of life's necessities.’” Frost, v Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 27 Temporary deprivations of sanitation, water, and shelter that last only a short amount of time and 28 1 do not pose a serious threat of harm to the prisoner do not give rise to deprivations that are 2 sufficiently serious to support an Eighth Amendment claim. See e.g., Minifield v. Butikofer, 298 3 F. Supp. 2d 900, 904 (N.D. Cal. 2004) (finding that a five hour deprivation of water did not rise to 4 the level of an Eighth Amendment violation); Diggs v. Doe, No. 1:19-CV-00766-GSA-PC, 2020 5 WL 5878268, at *5 (E.D. Cal. Oct. 2, 2020) (forced to stand for approximately ten hours in a 6 cage, was not allowed to use the toilet when he needed to, and later was only offered use of an 7 unsanitary toilet and sink without access to drinking water failed to state a claim.) 8 D. Injunctive Relief 9 Plaintiff seeks injunctive relief in this action. Federal courts are courts of limited 10 jurisdiction and in considering a request for injunctive relief, the Court is bound by the 11 requirement that as a preliminary matter, it have before it an actual case or controversy. City of 12 Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); Valley Forge Christian Coll. v. Ams. United for 13 Separation of Church and State, Inc., 454 U.S. 464, 471 (1982). If the Court does not have an actual case or controversy before it, it has no power to hear the matter in question. Id. 14 Further, requests for prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of 15 the Prison Litigation Reform Act [“PLRA”], which requires that the Court find the “relief 16 [sought] is narrowly drawn, extends no further than necessary to correct the violation of the 17 Federal right, and is the least intrusive means necessary to correct the violation of the Federal 18 right.” In cases brought by prisoners involving conditions of confinement, any injunction “must 19 be narrowly drawn, extend no further than necessary to correct the harm the court finds requires 20 preliminary relief, and be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 21 3626(a)(2). Moreover, where, as here, “a plaintiff seeks a mandatory preliminary injunction that 22 goes beyond maintaining the status quo pendente lite, ‘courts should be extremely cautious’ about 23 issuing a preliminary injunction and should not grant such relief unless the facts and law clearly 24 favor the plaintiff.” Committee of Central American Refugees v. I.N.S., 795 F.2d 1434, 1441 (9th 25 Cir. 1986), quoting Martin v. International Olympic Committee, 740 F.2d 670, 675 (9th Cir. 26 1984). 27 Plaintiff does not allege Defendants have authority to expunge Plaintiff's RVR from his 28 1 central file. “[T]he pendency of the present action does not automatically give the Court 2 jurisdiction over all prison officials in general or over the expungement of rule violations from 3 prisoner files at a given institution.” Aubert v. Madruga, No. 1:13-CV-01659-AWI-EPG (PC), 4 2016 WL 2866419, at *7-8 (E.D. Cal. May 17, 2016), report and recommendation adopted, 2016 5 WL 4494478 (E.D. Cal. Aug. 25, 2016) (denying injunctive relief because the court lacks 6 jurisdiction to compel non-party prison officials to expunge rule violations from plaintiff's central 7 file solely based on the pendency of a lawsuit against defendant prison officials in their official 8 capacity where defendants lack authority to expunge plaintiff's rule violations). Clifford v. 9 Rachal, No. CV 19-5605-DOC (KK), 2019 WL 3781603, at *3 (C.D. Cal. Aug. 12, 2019) 10 (finding the court lacks jurisdiction to compel non-party prison officials to remove the RVR's and 11 Counseling Chrono from Plaintiff's Central File). 12 E. Violation of Title 15 or CDCR Policies 13 Plaintiff may be attempting to allege a violation of CDCR Policies for not giving him a “lock up order.” The mere violation of a prison regulation, which may provide even more 14 procedural protections than mandated by the Constitution, does not give rise to a cognizable claim 15 for relief. See, e.g., Nible v. Fink, 828 Fed.Appx. 463 (9th Cir. 2020) (violations of Title 15 of the 16 California Code of Regulations do not create private right of action); Nurre v. Whitehead, 580 17 F.3d 1087, 1092 (9th Cir. 2009) (section 1983 claims must be premised on violation of federal 18 constitutional right); Prock v. Warden, No. 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at *11- 19 12 (E.D. Cal. Oct. 8, 2013) (noting that several district courts have found no implied private right 20 of action under title 15 and stating that “no § 1983 claim arises for [violations of title 15] even if 21 they occurred.”); Parra v. Hernandez, No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. 22 Cal. Nov. 13, 2009) (granting motion to dismiss prisoner's claims brought pursuant to Title 15 of 23 the California Code of Regulations); Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW 24 (PC), 2009 WL 1211372, at *9 (E.D. Cal. May 1, 2009) (holding that there is no private right of 25 action under Title 15 of the California Code of Regulations). Similarly, there is no liability under 26 § 1983 for violating prison policy. Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009). 27 /// 28 1 C. State Law Claim 2 Plaintiff may be seeking to allege a defamation claim against Defendants. 3 Under 28 U.S.C. § 1367(a), in any civil action in which the district court has original 4 jurisdiction, the “district courts shall have supplemental jurisdiction over all other claims that are 5 so related to claims in the action within such original jurisdiction that they form part of the same 6 case or controversy under Article III of the United States Constitution,” except as provided in 7 subsections (b) and (c). The Supreme Court has stated that “if the federal claims are dismissed 8 before trial, ... the state claims should be dismissed as well.” United Mine Workers of Am. v. 9 Gibbs, 383 U.S. 715, 726 (1966). 10 Although the Court may exercise supplemental jurisdiction over state law claims, Plaintiff 11 must first have a cognizable claim for relief under federal law. 28 U.S.C. § 1367. Plaintiff has 12 failed to state a cognizable federal claim 13 Further, the Government Claims Act requires exhaustion of Plaintiff's state law tort claims with the California Victim Compensation and Government Claims Board, and Plaintiff is required 14 to specifically allege compliance in his complaint. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 15 201, 208–09 (Cal. 2007); State v. Superior Court of Kings Cty. (Bodde), 32 Cal. 4th 1234, 1239 16 (Cal. 2004); Mabe v. San Bernardino Cty. Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th 17 Cir. 2001); Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995); 18 Karim– Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 627 (9th Cir. 1988). 19 Plaintiff has not alleged that he has complied with the Government Torts Claim Act. 20 IV. Conclusion and Order 21 For the reasons stated, Plaintiff’s first amended complaint fails to state a cognizable claim 22 for relief. Despite being provided with the relevant pleading and legal standards, Plaintiff has 23 been unable to cure the identified deficiencies and further leave to amend is not warranted. Lopez 24 v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 25 IT IS HEREBY RECOMMENDED as follows: 26 1. The federal claims in this action be dismissed, with prejudice, based on Plaintiff’s 27 failure to state a cognizable claim upon which relief may be granted; and 28 1 2. The Court decline to exercise supplemental jurisdiction over Plaintiff’s purported state 2 law claim. 3 These Findings and Recommendation will be submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 5 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 6 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 7 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 8 specified time may result in the waiver of the “right to challenge the magistrate’s factual 9 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 10 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 12 IT IS SO ORDERED.
13 Dated: August 18, 2021 /s/ Barbara A. McAuliffe _ 14 UNITED STATES MAGISTRATE JUDGE
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