(PC) Crane v. Lopez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD J. CRANE, Case No. 1:22-cv-00922-KES-HBK (PC) 12 Plaintiff, ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR JUDICIAL 13 v. NOTICE 14 G. LOPEZ, DEBBIE ASUNCION, (Doc. No. 63) DANIEL SANCHEZ, M. CONTRERAS, 15 and JOSEPH C. DOLIHITE, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE1 16 Defendants. (Doc. No. 52, 64) 17 FOURTEEN-DAY OBJECTION PERIOD 18 19 Pending before the Court is Plaintiff’s Second Amended Complaint. (Doc. No. 4, 20 “SAC”). In response to the Court’s November 20, 2023 Screening Order, Plaintiff filed 21 Objections and a Motion for Judicial Notice, in support of his Objections. (Doc. Nos. 63, 64). 22 For the reasons set forth below, the undersigned grants in part Plaintiff’s Motion for Judicial 23 Notice but nonetheless recommends the district court dismiss the SAC because it fails to state any 24 cognizable federal claim. 25 //// 26 /////B 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2023). 1 BACKGROUND AND SUMMARY OF OPERATIVE PLEADING 2 A. Procedural History 3 On July 27, 2023, Defendant G. Lopez removed this case from the Kings County Superior 4 Court after Plaintiff filed a Second Amended Complaint in state court raising for the first-time 5 federal claims. (See Doc. Nos. 1, 4). On October 23, 2023, the district court adopted the 6 undersigned’s Findings and Recommendations and denied Plaintiff’s Motion to Remand the 7 case back to state court. (Doc. Nos. 25, 49). Plaintiff’s Second Amended Complaint comprises 8 111 total pages—a 15-page complaint with 96 pages of exhibits. (Doc. No. 4, “SAC”). 9 Specifically, the SAC attaches Plaintiff’s first amended complaint filed on February 23, 2015 in 10 the state superior court along with various exhibits. As discussed below, Plaintiff’s initial state 11 court complaint named inmate Dolihite as the sole defendant and alleged only claims arising 12 under state law stemming from an incident that occurred on January 16, 2013 when Plaintiff was 13 stabbed in the neck with a pencil by inmate Dolihite. After the Fifth Appellate District Court 14 appellate court reversed the superior court’s dismissal of the Plaintiff’s first amended complaint 15 for failure to effectuate service on Dolihite and remanded back to the trial court directing that the 16 trial court accomplish service of the summons and complaint, Plaintiff filed his SAC. 17 On November 20, 2023, the Court issued a Screening Order, finding Plaintiff’s Complaint 18 failed to state any cognizable constitutional claim. (Doc. No. 52). The Court afforded Plaintiff 19 three options to exercise no later than December 29, 2023: (1) file an amended complaint if he 20 cure the identified deficiencies; (2) file a notice that he intends to stand on his Complaint subject 21 to the undersigned recommending the district court dismiss for reasons stated in the November 22 20, 2023 Screening Order; or (3) file a notice to voluntarily dismiss this action, without prejudice, 23 under Federal Rule of Civil Procedure 41(a)(1). (Id. at 12-13). After being granted two 24 extensions of time, on March 8, 2024, Plaintiff filed a Motion for Judicial Notice (“Motion”) and 25 on March 11, 2024, he filed Objections to the Court’s November 20, 2023 Screening Order. 26 (Doc. Nos. 63, 64). In the Objections, Plaintiff appears to reiterate his position, previously 27 rejected by the district judge, (Doc. No. 60), that this Court did not have authority to screen his 28 Complaint, and generally disagrees with the Court’s finding that his Complaint failed to state a 1 claim. (See generally Doc. No. 64). Thus, the Court construes Plaintiff’s Objections as a Notice 2 that Plaintiff intends to stand on his Complaint subject to the undersigned recommending the 3 district court dismiss this case for failing to state any federal claim. 4 B. Summary of Operative Complaint 5 The events giving rise to the SAC occurred in Kings County, Los Angeles County, and 6 Monterey County. (See generally Doc. No. 4 at 3-15). The SAC on the caption names five 7 Defendants (1) G. Lopez, Litigation Coordinator at Salinas Valley State Prison (“SVSP”), (2) 8 Debbie Asuncion, Warden of CSP-LA, (3) Daniel Sanchez, Litigation Coordinator at CSP-LA, 9 (4) M. Contreras, Clerk of the Monterey County Sheriff’s Office, and (5) Joseph Dolihite, a 10 CDCR inmate currently housed in Salinas Valley State Prison.2 (Id. at 7). However, in the body 11 of the SAC, inmate Dolihite is not identified under the list of Defendants on page 7, nor does the 12 SAC plead any cause of action against inmate Dolihite. (See generally Id.). The SAC names all 13 Defendants in both their individual and official capacities and claims they are “jointly and 14 severally liable” (id. at 7) on the following causes of action: (1) First Amendment retaliation (id. 15 at 8); (2) denial of access to the courts (id. at 9-11); and (3) intentional infliction of emotional 16 distress (id. at 12-14). On the cover sheet, Plaintiff also references the bane Act and conspiracy. 17 (Id. at 5). 18 The following facts are presumed true at this stage of the screening process. On January 19 16, 2013, Plaintiff was using a computer in a GED class at High Desert State Prison when 20 Defendant Dolihite stabbed Plaintiff twice in the neck with a pencil. (Id. at 9 ¶ 6). On June 19, 21 2014, Plaintiff filed a personal injury suit against Dolihite in Kings County Superior Court. (Id. 22 ¶ 7). In December 2014, a Superior Court order advised Plaintiff he would need to provide proof 23 of service of Dolihite for his claim to proceed and advised Plaintiff to “make arrangements with 24 the Sheriff Department at the county where defendant is located for service of plaintiff’s 25 complaint and summons.” (Id.). In January 2015, Plaintiff filed a first amended complaint and a 26 motion for service pursuant to California Code of Civil Procedure §§ 413.30, 414.10, and 415.30. 27 (Id. ¶ 8). On November 14, 2017, the Superior Court ordered Plaintiff to obtain permission from

28 2 See https://apps.cdcr.ca.gov/ciris/results?lastName=dolihite&firstName=joseph (last visited: March 20, 2024). 1 Defendant Asuncion to serve Dolihite with the summons and complaint. (Id. ¶ 12). 2 On January 22, 2018, Crane submitted a CDCR 22, requesting permission from Defendant 3 Asuncion to serve Dolihite with the Complaint. (Id. ¶ 13). Plaintiff noted he needed to file a case 4 management statement by February 14, 2018. (Id.). On January 30, 2018, Plaintiff received a 5 first-level response from a Sergeant Torres, indicating the request would be forwarded to the 6 litigation coordinator. (Id. ¶ 14). On February 5, 2018, Plaintiff completed a request for 7 supervisor review. (Id.). Plaintiff also sent Defendant Asuncion a letter stating KCSC had 8 ordered him to obtain the Warden’s permission to sue Dolihite. (Id. ¶ 15). The Complaint does 9 not clearly state what response, if any, Plaintiff received from Defendant Sanchez, the litigation 10 coordinator, or Defendant Asuncion, but quotes from an unspecified source3 that Torres and 11 Asuncion’s “failure . . . to respond to [Plaintiff] had the actual effect of frustrating Crane’s service 12 of the summons and complaint.” (Id. at 13 ¶ 26). 13 On February 14, 2019, Plaintiff contacted the Monterey County Sheriff’s Office 14 requesting service of his lawsuit on Defendant Dolihite. (Id. at 11 ¶ 16). In response, on March 15 4, 2019, Plaintiff received a “Notice of Action Taken,” stating the sheriff’s office was unable to 16 process his request and advising him to “Please contact Soledad State Prison to serve inmates at 17 their facilities.” (Id.). Defendant Contreras’ name appears on the document. (Id. at 99). 18 Plaintiff then mailed “all documents” to the Salinas Valley State Prison “which is near 19 Soledad.” (Id. ¶ 17). On April 23, 2019, Plaintiff received a response from Defendant Lopez, the 20 litigation coordinator at SVSP, stating that his legal correspondence was being returned “for the 21 following reasons: Improper Service and the Litigation Office does not serve or accept service for 22 other inmate [sic].” (Id). 23 On June 26, 2019, KCSC held a hearing on Plaintiff’s case and dismissed it with 24 prejudice. (Id. ¶ 18). The Fifth District Court of Appeal later reversed the dismissal, finding that 25 the various actions of KCSC, prison officials at CSP-LA and SVSP, and the Monterey County 26 Sheriff’s Office had frustrated Plaintiff’s statutory right of access to the courts, and remanded the 27 3 The Court infers that this quotation is taken from the Court of Appeal opinion in Crane v. Dolihite, 70 28 Cal. App. 5th 772 (2021). 1 case for further proceedings. Crane, 70 Cal. App. 5th at 790-91. On remand, Plaintiff filed a 2 Second Amended Complaint, adding Defendants Lopez, Sanchez, Asuncion, and Contreras and 3 raising all new claims. (See Doc. No. 4 at 3-15). Defendants subsequently filed a Notice of 4 Removal to this Court. (Doc. No. 1). 5 MOTION FOR JUDICIAL NOTICE 6 Federal Rule of Evidence 201 permits a court to take judicial notice of facts that are “not 7 subject to reasonable dispute” because they are either “generally known within the trial court’s 8 territorial jurisdiction,” or they “can be accurately and readily determined from sources whose 9 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). The Court may take judicial 10 notice of a pertinent law or regulations at any stage of the proceedings. Id.; see also National 11 Agricultural Chemicals Assn. v. Rominger, 500 F. Supp. 465, 472 (E.D. Cal. 1980). The Court 12 may take judicial notice on its own or at the request of any party. Id. 201(c). 13 Courts judicially notice other court proceedings “if those proceedings have a direct 14 relation to the matters at issue.” United States ex. Rel. Robinson Rancheria Citizens Counsel v. 15 Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (citations and internal quotation marks omitted); 16 Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011). However, a court may not take judicial 17 notice of findings of facts from another case. Walker v. Woodford, 454 F. Supp. 2d 1007, 1022 18 (S.D. Cal. 2006). 19 On March 8, 2024, Plaintiff filed a Motion requesting the Court take judicial notice of 20 several documents from the instant case and his related state court proceedings in support of his 21 Objections to the Court’s November 20, 2023 Screening Order. (Doc. No. 63). Plaintiff “submits 22 these state and federal court records to establish, among other issues: the collateral estoppel 23 grounds in regard to these claims; and the involvement of prison officials in covering an 24 attempted murder promoted by the Defendant Probst, Correctional Officer with others and denial 25 of access to the courts.” (Id. at 1). 26 Plaintiff seeks judicial notice of the documents below and certain “adjudicative facts” 27 specified in the Motion (not enumerated here): 28 1. Plaintiff’s (Appellant’s) Opening Brief in Crane v. Dolihite, F079877. 1 2. Motion for Judicial Notice filed on June 26, 2020 in Crane v. Dolihite, F079877. 2 3. July 31, 2020, Order issued by California Court of Appeal, Fifth Appellate District, 3 Granting Plaintiff’s Motion for Judicial Notice in Crane v. Dolihite, F079877. 4 4. October 21, 2021 Opinion issued by California Court of Appeal, Fifth District, 5 reversing the Kings County Superior Court’s dismissal with prejudice of Crane v. 6 Dolihite, Case No. 14 C 0180. 7 5. December 6, 2021 Order issued by Kings County Superior Court in Crane v. Dolihite, 8 Case No. 14 C 0180. 9 6. February 4, 2019, letter from Sean Lodholz, Deputy Attorney General, to Daniel 10 Sanchez, Litigation Coordinator at California State Prison – Los Angeles County. 11 7. July 19, 2023, Request for Entry of Default by Plaintiff in the instant case. 12 8. July 21, 2023, Request for Entry of Default by Plaintiff in the instant case. 13 Because Plaintiff’s prior state court proceedings in Kings County Superior Court Case No. 14 14 C 0180 and California Court of Appeal Case No. F079877 “have a direct relation to the 15 matters at issue” the Court may take judicial notice of Documents 1-5, above. See Borneo, Inc., 16 971 F.2d at 248. The Court may also judicially notice Documents 7 and 8, which are filings in 17 the instant case. While Document No. 6 references an audio interview with Defendant Joseph 18 Dolihite conducted after he 2013 incident where Dolihite allegedly stabbed Plaintiff, it is an 19 exhibit from an unrelated case (E.D. Cal. Case No. 2:15-208-TLN-KJN) in which Plaintiff 20 brought claims against various High Desert State Prison officials and parole board 21 commissioners. (See E.D. Cal. Case No. 2:15-208-TLN-KJN, Doc. No. 16). Document 6 does 22 not have any obvious relevance to the issues in the Court’s Screening Order, beyond a reference 23 to exhibits involving Defendant Dolihite, a Defendant named only on the first page of the SAC 24 but otherwise not included in the SAC. Thus, the Court denies Plaintiff’s Motion for Judicial 25 Notice as to Document No. 6. 26 The Court also denies Plaintiff’s request to judicially notice any “adjudicative facts” in the 27 cited documents. While a court may take judicial notice of the existence of documents from a 28 related Court proceeding, as noted above, it may not take judicial notice of findings of facts from 1 another case. Walker, 454 F. Supp. 2d at 1022. 2 APPLICABLE LAW AND ANALYSIS 3 A. Rule 8 and Screening Requirement 4 A plaintiff who commences an action while in prison is subject to the Prison Litigation 5 Reform Act (“PLRA”), which requires, inter alia, the court to screen a complaint that seeks relief 6 against a governmental entity, its officers, or its employees before directing service upon any 7 defendant. 28 U.S.C. § 1915A. This requires the court to identify any cognizable claims and 8 dismiss the complaint, or any portion, if it is frivolous or malicious, if it fails to state a claim upon 9 which relief may be granted, or if it seeks monetary relief from a defendant who is immune from 10 such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 11 At the screening stage, the court accepts the factual allegations in the complaint as true, 12 construes the complaint liberally, and resolves all doubts in the plaintiff’s favor. Jenkins v. 13 McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 14 2003). The Court’s review is limited to the complaint, exhibits attached, materials incorporated 15 into the complaint by reference, and matters of which the court may take judicial notice. Petrie v. 16 Elec. Game Card, Inc., 761 F.3d 959, 966 (9th Cir. 2014); see also Fed. R. Civ. P. 10(c). A court 17 does not have to accept as true conclusory allegations, unreasonable inferences, or unwarranted 18 deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Critical 19 to evaluating a constitutional claim is whether it has an arguable legal and factual basis. See 20 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). 21 The Federal Rules of Civil Procedure require only that a complaint include “a short and 22 plain statement of the claim showing the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). 23 Nonetheless, a claim must be facially plausible to survive screening. This requires sufficient 24 factual detail to allow the court to reasonably infer that each named defendant is liable for the 25 misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Moss v. U.S. Secret Service, 26 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not 27 sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. 28 Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. Although detailed factual allegations are not 1 required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 2 statements, do not suffice,” Iqbal, 556 U.S. at 678 (citations omitted), and courts “are not required 3 to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 4 2009) (internal quotation marks and citation omitted). 5 If an otherwise deficient pleading can be remedied by alleging other facts, a pro se litigant 6 is entitled to an opportunity to amend their complaint before dismissal of the action. See Lopez v. 7 Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. Department of Corr., 66 F.3d 8 245, 248 (9th Cir. 1995). However, it is not the role of the court to advise a pro se litigant on how 9 to cure the defects. Such advice “would undermine district judges’ role as impartial 10 decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 11 n.13. Furthermore, the court in its discretion may deny leave to amend due to “undue delay, bad 12 faith or dilatory motive of the part of the movant, [or] repeated failure to cure deficiencies by 13 amendments previously allowed . . . .” Carvalho v. Equifax Info. Srvs., LLC, 629 F.3d 876, 892 14 (9th Cir. 2010). 15 To ensure compliance with Rule 8, courts in the Eastern District of California generally 16 limit complaints to twenty-five pages. See Lal v. United States, 2022 WL 37019, at *2 (E.D. Cal. 17 Jan. 3, 2022); Williams v. Corcoran State Prison, 2022 WL 1093976, at *1 (E.D. Cal. Apr. 12, 18 2022). The page limit includes the complaint itself and any exhibits, for a total of twenty-five 19 pages. See Rivas v. Padilla, 2022 WL 675704, at *2 (E.D. Cal. Mar. 7, 2022). “[A] lengthy 20 complaint can violate Rule 8 if a defendant would have difficulty responding to the complaint.” 21 Skinner v. Lee, 2021 U.S. Dist. LEXIS 251321, 2021 WL 6617390, *2-*3 (C. D. Cal. May 20, 22 2021) (citing Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011). A 23 district court has the power to dismiss a complaint when a plaintiff fails to comply with Rules 8’s 24 pleading directives. McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996); Nevijel v. North 25 Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981). When the factual elements of a cause of 26 action are not organized into a short and plain statement for each particular claim, a dismissal for 27 failure to satisfy Rule 8(a) is appropriate. Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 28 (9th Cir. 1988); see also Nevijel, 651 F.2d at 674. Under Rule 8, allegations of facts that are 1 extraneous and not part of the factual basis for the particular constitutional claim are not 2 permitted. See Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (recognizing that Rule 8 3 can be violated when the plaintiff provide too much information). 4 As noted above, Plaintiff’s Complaint consists of 107 pages, including 96 pages of 5 exhibits. It therefore violates the page limits applicable to prisoner complaints in this District. 6 The Court will nevertheless screen Plaintiff’s Complaint but will not consider the voluminous 7 exhibits attached to the Complaint. 8 B. Section 1983 and Color of State Law 9 Section 1983 allows a private citizen to sue for the deprivation of a right secured by 10 federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). “To 11 establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the 12 Constitution and laws of the United States, and (2) that the deprivation was committed by a 13 person acting under color of state law.” Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 14 1149 (9th Cir. 2011) (citing Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003)); Soo Park v. 15 Thompson, 851 F.3d 910, 921 (9th Cir. 2017). “The ‘under color of law’ requirement under § 16 1983 is the same as the Fourteenth Amendment's ‘state action’ requirement.” Chudacoff at 1149 17 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 928 (1982)). 18 Courts have consistently rejected attempts by prisoner plaintiffs to sue fellow inmates 19 under § 1983. See, e.g., Jackson v. Foster, 372 F. App’x 770, 771 (9th Cir. 2010) (concluding 20 that “the district court properly dismissed Jackson’s excessive force claim because [fellow] 21 inmate . . . did not act under color of state law under any formulation of the governmental actor 22 tests”); see also Gettimier v. Burse, 2015 WL 75224, at *5 n.3 (E.D. Mo. Jan. 6, 2015) (“The fact 23 that a fellow inmate is not a ‘state actor’ for purposes of § 1983 litigation is so fundamental as to 24 not require citation.”); Rigano v. Cty. of Sullivan, 486 F. Supp. 2d 244, 256 n.15 (S.D.N.Y. 2007) 25 (“It is well-established that a § 1983 claim is only cognizable against a state actor and not a 26 fellow inmate.”); cf. Williams v. Calidonna, 2007 WL 432773, at *1-2 (N.D.N.Y. Feb. 2, 2007) 27 (dismissing § 1983 action against inmates despite allegation they were working as state 28 informants). Accordingly, Plaintiff cannot succeed in stating a section 1983 claim against fellow 1 inmate Joseph Dolihite in this case as inmates are not state actors. 2 C. First Amendment Retaliation 3 It is clear prisoners have a First Amendment right to file a grievance or civil rights 4 complaint against correctional officials. Brodheim v. Cry, 584 F. 3d 1262, 1269 (9th Cir. 2009). 5 To state a claim for First Amendment retaliation, a plaintiff must allege five elements: (1) he 6 engaged in protected activity; (2) the state actor took an adverse action against the plaintiff; (3) a 7 causal connection between the adverse action and the protected conduct; (4) the defendant’s 8 actions would chill or silence a person of ordinary fitness from protected activities; and (5) the 9 retaliatory action did not advance a legitimate correctional goal. Chavez v. Robinson, 12 F.4th 10 978, 1001 (9th Cir. 2021) (quoting Rhodes, 408 F.3d at 567–68). A retaliatory motive may be 11 shown by the timing of the allegedly retaliatory act or other circumstantial evidence, as well as 12 direct evidence. Bruce v. Ylst, 351 F.3d 1283, 1288–89 (9th Cir.2003); McCollum v. Ca. Dep’t 13 of Corr. And Rehab., 647 F.3d 870, 882 (9th Cir. 2011). Mere speculation that a defendant acted 14 out of retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (citing 15 cases). 16 Here, the SAC alleges that Defendant Asuncion retaliated against Plaintiff “for pursuing 17 administrative appeal against Officials at California State Prison – Los Angeles County, No. 18 LAC-16-03222, which was sent back twice from the Chief of Inmate Appeals, TLR # 1605952, 19 but never answered.” (Doc. No. 4 at 8 ¶ 1). The SAC alleges Asuncion retaliated against Plaintiff 20 for this protected First Amendment conduct by refusing to allow Plaintiff to serve his lawsuit on 21 Defendant Dolihite. (Id. ¶ 3). 22 Other than noting that Plaintiff filed administrative appeals against unspecified officials at 23 CSP-LA, the Complaint is devoid of facts that would support an inference that Defendant 24 Asuncion possessed a retaliatory motive in denying Plaintiff’s request for permission to serve 25 Defendant Dolihite. The SAC does not contain any details concerning Plaintiff’s earlier 26 administrative appeals, including their timing, the nature of the appeals, or the officials involved, 27 that would support such an inference. Moreover, the SAC fails to plead facts indicating that 28 Defendant Asuncion’s denial of his request had no legitimate penological basis. Because “mere 1 speculation” is insufficient to support a claim of retaliation, and the SAC fails to provide more 2 than speculation that Defendant Asuncion’s denial was driven by a retaliatory motive, it fails to 3 state a First Amendment retaliation claim. 4 D. Conspiracy Claim 5 A civil conspiracy is a combination of two or more persons who, by some concerted 6 action, intend to accomplish some unlawful objective for the purpose of harming another, which 7 results in damage. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999). To prove 8 a civil conspiracy, the plaintiff must show that the conspiring parties reached a unity of purpose 9 or common design and understanding, or a meeting of the minds in an unlawful agreement. Id. 10 To be liable, each participant in the conspiracy need not know the exact details of the plan, but 11 each participant must at least share the common objective of the conspiracy. Id. A defendant’s 12 knowledge of and participation in a conspiracy may be inferred from circumstantial evidence and 13 from evidence of the defendant’s actions. Id. at 856–57. 14 Conclusory allegations of conspiracy are not enough to support a § 1983 conspiracy 15 claim. Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (per curiam). Although an 16 “agreement or meeting of minds to violate [the plaintiff’s] constitutional rights must be 17 shown,” Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989), “[d]irect evidence 18 of improper motive or an agreement to violate a plaintiff’s constitutional rights will only rarely be 19 available. Instead, it will almost always be necessary to infer such agreements from 20 circumstantial evidence or the existence of joint action.” Mendocino Environmental Center v. 21 Mendocino County, 192 F.3d 1283, 1302 (9th Cir. 1999). Thus, “an agreement need not be overt, 22 and may be inferred on the basis of circumstantial evidence such as the actions of the 23 defendants.” Id. at 1301. 24 Here, the SAC contains only a passing, conclusory allegation that unspecified Defendants 25 engaged in a conspiracy to “to violate 42 U.S.C. 1983; and Civil Code 52.1(a)(b)(c), Jointly and 26 Severally under color of authority against plaintiff.” (Doc. No. 4 at 8 ¶ 4). The SAC does not 27 articulate any facts that support Plaintiff’s claim of a conspiracy. Indeed, given that Defendants 28 include two prison officials in Los Angeles County, a Sheriff’s Office clerk in Monterey County, 1 and an inmate at Salinas Valley State Prison, the Court cannot plausibly infer an agreement 2 among all Defendants to harm Plaintiff without some facts or circumstantial evidence in support. 3 See Western Mining Council, 643 F.2d at 624 (a court need not accept as true conclusory 4 allegations, unreasonable inferences, or unwarranted deductions of fact). Because Plaintiff’s 5 conspiracy cause of action consists only of a conclusory allegation that such a conspiracy existed, 6 the Court finds the SAC fails to state a conspiracy claim. 7 E. Bane Act Claim 8 California Civil Code § 52.1 (“Section 52.1”), the so-called “Bane Act,” permits a private 9 right of action for damages: 10 If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to 11 interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the 12 Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state . . . 13 14 Cal. Civ. Code § 52.1(a) (emphasis added). A claim under section 52.1 requires “an attempted or 15 completed act of interference with a legal right, accompanied by a form of coercion. Jones v. 16 Kmart Corp., 949 P.2d 941, 942 (1998). The essence of a Bane Act claim is that a defendant, 17 through threats, intimidation, or coercion, tried to or did prevent the plaintiff from doing 18 something that he had the right to do under the law or to force the plaintiff to do something that 19 he was not required to do under the law. Austin B. v. Escondido Union Sch. Dist., 57 Cal. Rptr. 20 3d 454, 472 (Cal. Ct. App. 2007) (quotation marks omitted). Although a complaint need not use 21 the statutory terms “threats, intimidation, or coercion,” it must allege facts from which the 22 presence of threats, intimidation, or coercion may be inferred. See Lopez v. County of Tulare, 23 2012 WL 33244, * 11 (E.D. Cal. Jan.6, 2012). 24 Here, as with Plaintiff’s conspiracy claim, his Bane Act claim consists only of conclusory 25 statements. The SAC states that “Defendants . . . acted in conspiracy to violate . . . Civil Code 26 52.1(a)(b)(c), Jointly and Severally under color of authority against plaintiff.” (Doc. No. 4 at 8 ¶ 27 4). The SAC later states, under the heading for an intentional infliction of emotional distress 28 claim, that “Defendants are Jointly and Severally liable for the violations of Plaintiff’s civil rights 1 as pursuant to civil code section 52.1, which is an independent violation.” (Id. at 14 2 ¶ 30). However, the SAC is devoid of facts, even liberally construed, that reflect the use by any 3 Defendant of threats, intimidation, or coercion to deprive Plaintiff of his civil rights. Nor does the 4 SAC specify which of Plaintiff’s rights the Defendants sought to interfere with, or even which 5 Defendants sought to violate his rights. Although pro se pleadings are liberally construed, Haines 6 v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and vague allegations are not adequate to 7 support a cause of action. Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a 8 liberal interpretation of a civil rights complaint may not supply essential elements of the claim 9 that were not initially pled. Id. Here, the SAC fails to plead the essential elements of a Bane Act 10 violation and thus fails to state a claim. 11 Further, to the extent Plaintiff’s claim is brought against a state actor, the SAC fails to 12 allege compliance with the Government Claims Act. 4 California’s Government Claims Act 13 requires that a tort claim against a public entity, or its employees be presented to the California 14 Victim Compensation and Government Claims Board, formerly known as the State Board of 15 Control, no more than six months after the cause of action accrues. Cal. Gov’t Code §§ 905.2, 16 910, 911.2, 945.4, 950–950.2. Presentation of a written claim, and action on or rejection of the 17 claim are conditions precedent to suit. State v. Superior Court of Kings County (Bodde), 32 18 Cal.4th 1234, 1245 (Cal. 2004); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 19 (9th Cir. 1995). The Government Claims Act applies to claims brought under the Bane Act. 20 Inman v. Anderson, 294 F. Supp. 3d 907, 925 (N.D. Cal. 2018). The SAC’s failure to allege 21 compliance with the Government Claims Act is an additional reason it fails to state a Bane Act 22 claim. 23

24 4 The SAC asserts that Plaintiff’s claims “are exempt from state claims statute because this action proceeds as a 42 U.S.C. § 1983 claim. Defendants are all Jointly and Severally liable to Plaintiff’s injuries; and the 25 Remittitur forecloses need for government claim, because it stems from Court of Appeal Case No. F079877.” (Doc. No. 4 at 5). Plaintiff fails to present any legal authority to support these conclusory 26 claims, which are contradicted by the well-established requirement that a plaintiff exhaust his administrative remedies with California Victim Compensation and Government Claims Board before 27 filing a damages claim against state employees. See State v. Superior Court of Kings County (Bodde), 32 Cal. 4th 1234, 1245 (Cal. 2004). Moreover, even assuming Plaintiff’s state claims are not barred for 28 failure to comply with the GCA, they also fail to state a claim. 1 F. First Amendment Interference with Access to Courts 2 Inmates have a fundamental constitutional right of access to the courts and prison officials 3 may not actively interfere with an inmate’s right to litigate. Lewis v. Casey, 518 U.S. 343, 346 4 (1996); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir. 2009). Courts have traditionally 5 differentiated between two types of access claims, those involving the right to affirmative 6 assistance, and those involving an inmate’s right to litigate without active interference. Silva v. 7 Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011). 8 The right to be free from active interference does not require prison officials to provide 9 affirmative assistance in the preparation of legal papers, but rather forbids states from “erect[ing] 10 barriers that impede the right of access of incarcerated persons.” John L. v. Adams, 969 F.2d 228, 11 235 (6th Cir. 1992); Snyder v. Nolen, 380 F.3d 279, 291 (7th Cir. 2004) (“The right of access to 12 the courts is the right of an individual, whether free or incarcerated, to obtain access to the courts 13 without undue interference”). Thus, aside from their affirmative right to the tools necessary to 14 challenge their sentences or conditions of confinement, prisoners also have a right, protected by 15 the First Amendment right to petition and the Fourteenth Amendment right to substantive due 16 process, “to pursue legal redress for claims that have a reasonable basis in law or fact.” Silva, 658 17 F.3d at 1102 (citation omitted). To state a viable claim of active interference, a plaintiff must 18 show that he suffered an actual injury, which requires “actual prejudice to contemplated or 19 existing litigation” by being shut out of court. Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 20 1018 (9th Cir. 2011) (citing Lewis, 518 U.S. at 348, 351); Christopher v. Harbury, 536 U.S. 403, 21 415 (2002); Phillips, 588 F.3d at 655. 22 Liberally construed, the SAC alleges that the actions of various government officials, 23 including Defendants Lopez, Asuncion, Sanchez, and Contreras, interfered with Plaintiff’s First 24 Amendment right of access to the Courts. Even assuming the actions of one or more of the 25 Defendants interfered with Plaintiff’s access to the courts, however, his claim fails because he has 26 not alleged, nor can he allege, an actual injury because that has not been mooted by his prior state 27 court proceeding. Plaintiff litigated the issue of whether various government actors interfered 28 with his access to courts in the preceding state court appeal. Through that proceeding Plaintiff 1 obtained the remedy he sought, i.e., reversal of the dismissal of his case and another opportunity 2 to litigate his claims against Defendant Dolihite. See Crane, 70 Cal. App. 5th 772. Thus, the 3 injury that Plaintiff claims to have suffered from the alleged interference by Defendants Sanchez, 4 Contreras, Asuncion, and Lopez, (see Doc. No. 4 at 13 ¶ 24), has been remedied. Because the 5 SAC does not allege any other actual injury resulting from the alleged interference, Plaintiff 6 cannot state a First Amendment access to Courts claim against any Defendant. Specifically, 7 Plaintiff cannot show an injury as the state appellate court reinstated his case and directed the 8 state trial court to effectuate service of Plaintiff’s first amended complaint on inmate Dolihite. 9 G. Intentional Infliction of Emotional Distress 10 Plaintiff’s SAC contains a section titled Count Three: Intentional Infliction of Emotional 11 Distress. (Doc. No. 4 at 12). However, this section of the SAC focuses primarily on Plaintiff’s 12 access to courts claim and does not allege that the interference with his litigation caused him 13 emotional distress. Rather, the heading appears to refer to an IIED claim Plaintiff previously 14 brought against Defendant Dolihite, stemming from Dolihite’s alleged stabbing attack. (Id.). To 15 the extent Plaintiff intended to allege an IIED claim, he fails to do so because the SAC does not 16 set forth facts sufficient to support such a claim. 17 CONCLUSION AND RECOMMENDATION 18 Based on the above, the undersigned finds Plaintiff’s Second Amended Complaint fails to 19 state any cognizable claim. In its November 20, 2023 Screening Order, the Court advised 20 Plaintiff of the deficiencies in the SAC and afforded him the opportunity to amend the SAC. 21 Instead, Plaintiff elected to stand on his SAC subject to the undersigned recommending the 22 district court dismiss this case. (See Doc. Nos. 63, 64). Despite being provided with guidance 23 and the appropriate legal standards, Plaintiff elected not to cure the deficiencies identified above. 24 A plaintiff’s repeated failure to cure a complaint’s deficiencies constitutes “a strong indication 25 that the [plaintiff has] no additional facts to plead.” Zucco Partners, LLC v. Digimarc Corp., 552 26 F.3d 981, 1007 (9th Cir. 2009) (citation and internal quotation marks omitted). Thus, the 27 undersigned recommends that the district court dismiss the SAC without further leave to amend. 28 McKinney v. Baca, 250 F. App’x 781 (9th Cir. 2007) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1 | 1261 (9th Cir.1992)) (noting discretion to deny leave to amend is particularly broad where court 2 | has afforded plaintiff one or more opportunities to amend his complaint). 3 ACCORDINGLY, it is RECOMMENDED: 4 The Second Amended Complaint (Doc. No. 4) be dismissed under § 1915A for failure to 5 || state a claim and this case be dismissed. 6 NOTICE TO PARTIES 7 These Findings and Recommendations will be submitted to the United States District 8 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 9 | after being served with a copy of these Findings and Recommendations, a party may file written 10 | objections with the Court. /d.; Local Rule 304(b). The document should be captioned, 11 | “Objections to Magistrate Judge’s Findings and Recommendations.” The assigned District Judge 12 | will review these Findings and Recommendations under 28 U.S.C. § 636(b)(1)(C). A party’s 13 | failure to file objections within the specified time may result in the waiver of certain rights on 14 || appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 15 '© | Dated: _ March 22, 2024 law Nh. fareh Base □□□ 17 HELENA M. BARCH-KUCHTA ig UNITED STATES MAGISTRATE JUDGE

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