(PC) DeJesus v. Romero

Opinion

1 2 3 4 5 6

7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

10 JOE S. DEJESUS, Case No. 1:23-cv-01096-KES-EPG (PC)

11 Plaintiff, ORDER VACATING PREVIOUS FINDINGS AND RECOMMENDATIONS 12 v. (ECF NO. 17) 13 J. ROMERO et al., ORDER DENYING PLAINTIFF’S MOTION 14 Defendants. TO APPOINT COUNSEL

15 (ECF NO. 14)

16 AND

17 FINDINGS AND RECOMMENDATIONS TO DISMISS THIS ACTION FOR FAILURE 18 TO STATE A CLAIM WITHOUT LEAVE TO AMEND 19 (ECF Nos. 1, 18) 20 OBJECTIONS, IF ANY, DUE WITHIN 21 THIRTY DAYS

22 Plaintiff Joe S. Dejesus is a state prisoner proceeding pro se and in forma pauperis in 23 this civil rights action filed pursuant to 42 U.S.C. § 1983. For reasons stated below, the Court 24 vacates its previous Findings and Recommendations, denies Plaintiff’s motion to appoint 25 counsel, and recommends that this case be dismissed with prejudice for failure to state a claim 26 without further leave to amend. 27 28 1 Plaintiff has thirty days from the date of service of these findings and recommendations 2 to file his objections. 3 I. BACKGROUND 4 Plaintiff filed the complaint commencing this action on July 21, 2023. (ECF No. 1). 5 Plaintiff’s complaint set forth a series of disagreements with correctional officer J. Romero at 6 Pleasant Valley State Prison (PVSP) regarding Plaintiff’s rights and obligations when issued a 7 cane and ADA vest, resulting in Romero issuing Plaintiff multiple Rule Violation Reports 8 (RVRs). (See Screening Order, ECF No. 13 at 3–8, summarizing Plaintiff’s complaint). The 9 events alleged in the complaint span over the summer and fall of 2022. (Id.) Plaintiff asserted 10 claims for retaliation in violation of the First Amendment, conspiracy in adjudicating RVRs, 11 lack of due process in disciplinary hearings, and deliberate indifference to serious medical 12 needs. (Id. at 8). 13 On February 6, 2024, the Court screened Plaintiff’s complaint and found that it failed to 14 state any cognizable claims. (ECF No. 13). The Court provided Plaintiff with applicable legal 15 standards, explained why the complaint failed to state any cognizable claims, and gave Plaintiff 16 thirty days to either file a first amended complaint or notify the Court in writing that he wanted 17 to stand on his complaint. (Id. at 2, 17). 18 After receiving the Court’s screening order, Plaintiff filed a notice on February 29, 19 2024, that he wished to stand on his complaint, which included a motion to appoint counsel. 20 (ECF No. 14). Accordingly, on March 15, 2024, the Court issued Findings and 21 Recommendations to dismiss this action for failure to state a claim. (ECF No. 17). 22 Then on April 2, 2024, Plaintiff filed First Amended Complaint (FAC). (ECF No. 18). 23 In this complaint, Plaintiff does not name correctional officer Romero as a defendant—or 24 mention him at all—but instead, names as a defendant correctional officer Devilla. (Id. at 2). 25 The allegations in this new complaint relate to a single incident that occurred on January 16, 26 2023. (Id. at 3). Plaintiff alleges that on that day, Devilla delayed his nebulizer treatment: 27 instead of letting Plaintiff out of his cell immediately at 11:30 am to go to medical, Devilla told 28 1 Plaintiff that medical was in a meeting. As a result, Plaintiff was not able to go for his nebulizer 2 treatment until “yard and pill call” at 1:00 pm. (Id. at 3–5, 7). 3 In light of Plaintiff’s filing of a First Amended Complaint after the Court’s previous 4 Findings and Recommendations, the Court vacates its previous Findings and Recommendations 5 and issues this order to address the original complaint as well as Plaintiff’s proposed amended 6 complaint. As described below, the Court finds that Plaintiff’s original complaint fails to state 7 a claim and granting leave to amend would be futile, because the proposed amended complaint 8 also fails to state a claim. 9 II. SCREENING REQUIREMENT 10 The Court is required to screen complaints brought by prisoners seeking relief against a 11 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 12 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 13 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 14 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 15 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 5), the Court may 16 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 17 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 18 determines that the action or appeal fails to state a claim upon which relief may be granted.” 28 19 U.S.C. § 1915(e)(2)(B)(ii). 20 A complaint is required to contain “a short and plain statement of the claim showing 21 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 22 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 25 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 26 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 27 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are 28 not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 1 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a plaintiff’s 2 legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 3 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 4 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 5 pro se complaints should continue to be liberally construed after Iqbal). 6 III. SUMMARY OF PLAINTIFF’S COMPLAINT 7 In his original complaint (ECF No. 1), Plaintiff alleges as follows: 8 Defendant J. Romero is a Corrections Official for the California Department of 9 Corrections and Rehabilitation (“CDCR”), who was assigned to PVSP. Defendant A. Bustos is 10 a correctional Lieutenant assigned to PVSP. 11 Romero retaliated against Plaintiff for filing grievances against Romero and “over 12 Plaintiff verbally speaking up for his rights.” Romero’s retaliation consisted of filing false 13 RVRs, denying Plaintiff the right to use the phone, maliciously destroying Plaintiff’s property, 14 arbitrarily forcing Plaintiff to wear an ADA vest in hot weather, interfering with Plaintiff’s 15 medical treatment, and making verbal threats to Plaintiff. Additionally, Romero and defendant 16 Bustos conspired to deprive Plaintiff of his constitutional rights, resulting in the loss of 30 days 17 of outdoor exercise for Plaintiff. 18 On June 5, 2022, Romero ordered Plaintiff to stand for the 5:00 pm standing count. 19 Plaintiff refused on the basis that he is ADA (presumably referring to “Americans with 20 Disability Act”) and that his leg was hurting too much to stand. Romero looked at the ADA 21 door tag and walked away. 22 The next day, on June 6, 2022, Romero stopped Plaintiff from exiting the building for 23 outdoor exercise because Plaintiff did not have his cane with him. Plaintiff said he only used 24 his cane as needed. 25 The following day, on June 7, 2022, Romero again stopped Plaintiff from exiting the 26 building to attend yard because Plaintiff was not wearing his ADA vest. Romero told Plaintiff 27 he had to wear the ADA vest outside his cell. Plaintiff disagreed and said it was too hot to wear 28 the ADA vest, especially given Plaintiff’s lung condition. Plaintiff and Romero then argued 1 over whether Plaintiff is required to wear an ADA vest at all times, with Plaintiff arguing that 2 PVSP’s operational procedures say that a mobility impaired inmate must only possess an ADA 3 vest, unless that inmate is confined to a wheelchair or unable to sit on the ground during an 4 emergency alarm. Eventually, Plaintiff put on the vest and went to medical for his lung 5 treatment. Romero moved out of the way without saying anything once Plaintiff put on the 6 ADA vest. 7 On June 9, 2022, Plaintiff received RVR, which was a “Counseling Chrono,” charging 8 Plaintiff with violating California Code of Regulations (CCR) Title 15 § 3013, for “unlawful 9 influence.” In that RVR, Romero falsely stated that he had told Plaintiff to put on his vest to 10 attend yard, but in response, Plaintiff attempted to manipulate Romero into not enforcing the 11 ADA rule against Plaintiff. Plaintiff argues that his conduct did not violate the rule against 12 “unlawful influence,” which states that “[i]nmates shall not attempt to gain special 13 consideration or favor from other inmates, employees, institution visitors or any other person 14 by the use of bribery, threat or other unlawful means.” Plaintiff claims that Romero filed the 15 RVR in retaliation for Plaintiff speaking up for his right not to stand for count, for his right to 16 go to medical without wearing his ADA vest, and his right to be outside in hot weather without 17 his ADA vest on. Plaintiff alleges that Romero filed the RVR to prevent Plaintiff from getting 18 parole at his next hearing. 19 One week later, Plaintiff filed a grievance against Romero for filing the allegedly false 20 RVR about unlawful influence. 21 A week or two later, when Romero was escorting Plaintiff to medical, Romero stated 22 “Do not write me up again.” Plaintiff responded by filing another grievance against Romero for 23 making a verbal threat against Plaintiff. 24 In the meantime, Romero was still forcing Plaintiff to wear an ADA vest. On June 23, 25 2022, Plaintiff went to medical and told the registered nurse that Plaintiff wanted to turn in the 26 vest and the cane. Plaintiff signed a medical refusal document stating that he no longer wanted 27 the cane and the vest. The nurse, however, told Plaintiff he had to keep the cane and vest until 28 the doctor told him to turn them in. 1 Then, approximately on July 24, 2022, Plaintiff’s boss lost Plaintiff’s prison ID card. 2 Plaintiff began using his paper picture ID cell door tag as ID. Romero, however, told Plaintiff 3 he could not attend yard without the proper ID. Plaintiff explained that he needed to go to the 4 yard so that he could go to medical for lunch treatment. Romero told Plaintiff to return to his 5 cell because he lacked proper ID. 6 Back in his cell, Plaintiff found an old prison ID card and began using it to attend yard 7 activities. Romero also allowed Plaintiff to exit the building with the old ID card. 8 On July 31, 2022, Romero gave Plaintiff his new ID card. Romero then asked Plaintiff 9 for his old card. Romero told Plaintiff inmates are only allowed one ID card and kept Plaintiff’s 10 old ID card. 11 The following day, August 1, 2022, Romero falsified an RVR charging him with 12 another violation of CCR Title 15 § 3013 for “unlawful influence,” alleging that Plaintiff 13 attempted to manipulate Romero during the conversation about the ID. 14 Plaintiff claims that Romero should not have been the one to issue Plaintiff a new ID 15 card, considering the conflict between them. Plaintiff alleges that, according to Romero’s 16 training, “Romero was to limit his interactions with Plaintiff and only interact with him when 17 absolutely necessary,” and that Romero chose to give him the ID card so he could falsify an 18 RVR against Plaintiff. Plaintiff alleges that Romero filed this RVR against him in retaliation 19 for Plaintiff filing grievances against Romero and for Plaintiff “speaking up for his rights.” 20 In response, Plaintiff filed another grievance on Romero, alleging Romero falsified the 21 RVR 115 in retaliation for Plaintiff’s previous grievances and for speaking up verbally for his 22 rights. Plaintiff then told Romero that Plaintiff had filed a grievance against him. Romero 23 responded “with sarcasm,” stating that “he welcomes grievances because they are learning 24 experiences.” 25 The following day, Romero would not allow Plaintiff to sign up for telephone. 26 Ordinarily, floor officers would do phone sign ups from 2:30–4:30, but would not actually turn 27 in the sign-up sheet until 6:30 pm. When Plaintiff tried to sign up for telephone at 3:30 pm, 28 Romero falsely stated that sign-ups were over and that he had already turned in the sign-up 1 sheet. However, Plaintiff learned from other inmates that the phone sig-un sheet had not been 2 turned in until 6:30 pm. As a result, Plaintiff missed his regular 10:00 am call on the following 3 day. 4 On October 4, 2022, Plaintiff was exiting the building for lunch and was carrying his 5 ADA vest in his hand. Plaintiff eventually put the vest on with some difficulty while Romero 6 and other inmates laughed at him. Later that day, Plaintiff spoke with Sergeant Perez about 7 Romero’s harassment about the ADA vest. Sergeant Perez asked to speak with Romero and 8 “told off Romero in a loud, aggressive and belittling fashion . . . to stop harassing Plaintiff over 9 the F-ing vest, and that he’s F-ing tired of hearing about the vest.” Romero responded “Yes, 10 sir,” and Sergeant Perez left the building. 11 However, two days later, on October 6, 2022, Plaintiff went to medical and just left his 12 vest and cane at medical. Sergeant Clark brought the vest back to Plaintiff and persuaded 13 Plaintiff to accept the vest and cane until the doctor came to pick them up. Sergeant Clark then 14 went to talk to Romero in private. After the meeting, Romero told Plaintiff that he had to wear 15 the vest and they argued about what Sergeant Clark had told each of them about the need for 16 Plaintiff to wear his ADA vest. 17 On October 11, 2022, Plaintiff went to medical to drop off the vest and cane. Plaintiff 18 signed a document that he no longer wanted the vest and cane. The nurse again told him to hold 19 onto the vest and cane until the doctor took them. The nurse told Plaintiff he did not need to 20 wear the vest anymore, but when he returned to the building, Romero told Plaintiff that until 21 medical tells him he no longer needs to wear the vest, that he must still wear the vest. 22 Romero then told Mr. Navarro, from the ADA office, and Assistant Warden Ms. Barker 23 about Plaintiff not wearing the ADA vest. They spoke outside of Plaintiff’s presence. After the 24 conversation, Mr. Navarro spoke with Plaintiff “telling Plaintiff that he’s a F-ing grown man 25 and that he needs to F-ing learn how to follow the rules and that until he’s ready to f-ing follow 26 the rules that then he’ll talk with Plaintiff.” Ms. Barker asked Plaintiff if he would like to move 27 to another building, and that she could move him if he would like. Plaintiff declined. 28 Ms. Barker told Plaintiff to let her know if he should change his mind. Plaintiff also tried to 1 speak with Sergeant Perez about how Romero was still making him wear the vest, and Perez 2 “told Plaintiff he had to wear the vest now, that medical told him that he needs to wear the 3 vest.” Plaintiff told Perez that the day before, he signed medical papers refusing the cane and 4 vest and that medical told him he no longer had to wear the vest. Perez said that if Plaintiff still 5 had the cane and vest then he had to wear the vest. Plaintiff believes Perez was lying about 6 what medical told him. 7 When Plaintiff returned to the building, Romero told Plaintiff he had to wear the vest. 8 Plaintiff argued that there will still hot days in October. Romero said “Look! I’m telling you, 9 you have to wear it!” 10 Later that day, Romero gave Plaintiff three pieces of paper from PVSP’s Operational 11 Procedure (OP), with highlighted rules about wearing the vest. Plaintiff says that the rules 12 indicated that Plaintiff merely had to possess the vest when out of his cell, not wear it at all 13 times. 14 On October 20, 2022, Plaintiff received another RVR alleging that Plaintiff failed to 15 wear his vest the previous day. The RVR also charged Plaintiff with disobeying a direct order 16 because he had already been counseled to wear his vest. 17 The following day, Romero told Plaintiff to turn in his ADA cane and vest to medical. 18 When Plaintiff returned to the building, there was another RVR dated October 21, 2022 19 regarding an incident on October 12, 2022 where Plaintiff did not wear his best. That RVR also 20 alleged that Plaintiff had disobeyed a direct order. Plaintiff alleges there was no reason for this 21 separate RVR given that they were the same charges as another RVR. 22 Plaintiff filed a grievance against Romero for the two RVRs, claiming that they were in 23 retaliation for Plaintiff’s previous grievances against Romero. 24 On November 23, 2022, Romero went into Plaintiff’s cell on the guise of conducting a 25 random cell search, and damaged Plaintiff’s audio amplifier, which is called a Boostaroo. 26 Romero violated the rule to leave the cell in good order following a search, and not to use 27 searches as forms of punishment. Plaintiff also claims that, given the conflicts between them, 28 Romero should not have done the cell search. 1 On December 12, 2022, Plaintiff submitted another grievance against Romero over the 2 damaged Boostaroo. 3 Sometime later in December 2022 or early January 2023, Romero held out a piece of 4 mail to Plaintiff. When Plaintiff grabbed the mail, Romero pulled it back. Romero looked at 5 Plaintiff through the side of the door in a negative and hostile way. Romero stated “This better 6 not be a grievance over your Boostaroo.” Romero then released the mail, which was in fact a 7 grievance regarding the Boostaroo. 8 Plaintiff alleges that Romero and Defendant Bustos conspired to find him guilty on the 9 charge of attempting to manipulate him into not enforcing the prison ID card standard. There 10 was no evidence of this allegation. As a result of this guilty finding, Plaintiff lost 30 days of 11 yard. 12 On February 11, 2023, Plaintiff had bad chest pains that required emergency treatment. 13 This happened again on March 2, 2023. Plaintiff believes these attacks were brought on by the 14 ongoing and constant stress as a result of Romero’s retaliation. Romero knew that Plaintiff and 15 inmates find the ADA vest degrading and humiliating and that was why Romero wanted 16 Plaintiff to wear the vest. 17 Plaintiff brings claims for retaliation under the First Amendment for filing grievances, 18 conspiracy, lack of due process, and deliberate indifference to serious medical needs. Plaintiff 19 asks for an injunction ordering Defendants to remove the RVR from Plaintiff’s file, in addition 20 to monetary damages. 21 IV. ANALYSIS OF PLAINTIFF’S COMPLAINT 22 A. Section 1983 23 The Civil Rights Act under which this action was filed provides: 24 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of 25 Columbia, subjects, or causes to be subjected, any citizen of the 26 United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the 27 Constitution and laws, shall be liable to the party injured in an action 28 at law, suit in equity, or other proper proceeding for redress . . . . 1 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 2 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 3 490 U.S. 386, 393–94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 4 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 5 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 6 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 7 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 8 under color of state law, and (2) the defendant deprived him of rights secured by the 9 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 10 2006); see also Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 11 “under color of state law”). A person deprives another of a constitutional right, “within the 12 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 13 omits to perform an act which he is legally required to do that causes the deprivation of which 14 complaint is made.’” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 15 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal 16 connection may be established when an official sets in motion a ‘series of acts by others which 17 the actor knows or reasonably should know would cause others to inflict’ constitutional harms.” 18 Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 19 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 20 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 21 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 22 A plaintiff must demonstrate that each named defendant personally participated in the 23 deprivation of his rights. Iqbal, 556 U.S. at 676–77. In other words, there must be an actual 24 connection or link between the actions of the defendants and the deprivation alleged to have 25 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 26 691, 695 (1978). 27 Supervisory personnel are not liable under section 1983 for the actions of their 28 employees under a theory of respondeat superior and, therefore, when a named defendant 1 holds a supervisory position, the causal link between the supervisory defendant and the claimed 2 constitutional violation must be specifically alleged. Iqbal, 556 U.S. at 676–77; Fayle v. 3 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 4 1978). To state a claim for relief under section 1983 based on a theory of supervisory liability, 5 a plaintiff must allege some facts that would support a claim that the supervisory defendants 6 either: were personally involved in the alleged deprivation of constitutional rights, Hansen v. 7 Black, 885 F.2d 642, 646 (9th Cir. 1989); “knew of the violations and failed to act to prevent 8 them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); or promulgated or “implement[ed] a 9 policy so deficient that the policy itself is a repudiation of constitutional rights and is the 10 moving force of the constitutional violation,” Hansen, 885 F.2d at 646 (citations and internal 11 quotation marks omitted). 12 For instance, a supervisor may be liable for his or her “own culpable action or inaction 13 in the training, supervision, or control of his [or her] subordinates,” “his [or her] acquiescence 14 in the constitutional deprivations of which the complaint is made,” or “conduct that showed a 15 reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 16 630, 646 (9th Cir. 1991) (citations, internal quotation marks, and brackets omitted). 17 B. First Amendment Retaliation 18 Plaintiff’s first cause of action claims that Defendant Romero violated his First 19 Amendment right by retaliating against him for filing grievances by filing three false RVRs, 20 denying Plaintiff access to the yard, denying Plaintiff access to the phone, unlawfully searching 21 Plaintiff’s cell, forcing Plaintiff to wear an ADA vest, interfering with medical treatment, and 22 making verbal threats against Plaintiff. 23 A viable claim of First Amendment retaliation entails five basic elements: “(1) An 24 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 25 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 26 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional 27 goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (footnote omitted). 28 1 The Court finds that Plaintiff’s allegations, even if true, do not set forth a claim for 2 retaliation in violation of the First Amendment. 3 Although Plaintiff repeatedly states that Defendant Romero took actions against him 4 because Plaintiff filed grievances against Romero, Plaintiff’s facts do not indicate this. Instead, 5 Plaintiff’s facts, even if true, demonstrate that Defendant Romero acted in response to Plaintiff 6 not obeying Romero’s orders to stand up and to wear his ADA vest, rather than to retaliate 7 against Plaintiff for filing grievances. 8 This is borne-out by Plaintiff’s timeline of events. Plaintiff’s narrative begins with the 9 events of June 5, 2002, when Romero ordered Plaintiff to stand for the 5:00 pm standing count 10 and Plaintiff refused to do so due to his ADA status. Plaintiff does not allege that Plaintiff had 11 filed a grievance against Romero before this incident, nor that Romero said or did anything to 12 indicate that Romero was acting in retaliation against Plaintiff due to an inmate grievance. 13 The next event Plaintiff describes is on June 6, 2022, when Romero stopped Plaintiff 14 from exiting the building, asking Plaintiff where his cane was and why he was not using it. 15 Plaintiff responded that he only uses the cane as needed. Again, Plaintiff does not allege that he 16 had a pending grievance against Romero at this time, or that Romero said or did anything tying 17 this action to Plaintiff’s filing of a grievance. 18 Plaintiff then alleges that, on the following day, Romero prevented Plaintiff from 19 exiting the building because Plaintiff was not wearing his ADA vest. At that time, Romero 20 allegedly told Plaintiff that he had to wear the ADA vest to attend yard. Plaintiff describes a 21 lengthy argument with Romero about whether the rules required Plaintiff to wear his ADA vest 22 outside his cell. Plaintiff ultimately agreed to wear his ADA vest and was allowed to exit the 23 building. Again, there are no allegations that Plaintiff had a pending grievance at this time, that 24 Romero knew about a grievance, or that Romero said or did anything tying this incident to a 25 previous grievance. On the contrary, it appears Romero acted based on his belief, correct or 26 not, that the rules required Plaintiff to wear his ADA vest. 27 Indeed, Plaintiff first alleges that he filed a grievance against Romero after these 28 incidents and also after Romero had filed an RVR against Plaintiff charging Plaintiff with 1 unlawful influence related to the argument about Plaintiff’s ADA vest. This timeline 2 contradicts Plaintiff’s claim that Romero took these actions in retaliation against Plaintiff for 3 filing a grievance against Romero. 4 Plaintiff’s complaint thus fails to state a cognizable claim for retaliation under the First 5 Amendment against Romero. 6 C. Due Process Violation 7 Plaintiff’s third cause of action asserts a claim for violation of the 14th Amendment’s 8 due process clause.1 9 The Due Process Clause protects prisoners from being deprived of liberty without due 10 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). To state a cause of action for 11 deprivation of procedural due process, a plaintiff must first establish the existence of a liberty 12 interest for which the protection is sought. Liberty interests may arise from the Due 13 Process Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466–68 (1983). With 14 respect to liberty interests arising from state law, the existence of a liberty interest created by 15 prison regulations is determined by focusing on the nature of the deprivation. Sandin v. Conner, 16 515 U.S. 472, 481–84 (1995). Liberty interests created by prison regulations are limited to 17 freedom from restraint which “imposes atypical and significant hardship on the inmate in 18 relation to the ordinary incidents of prison life.” Id. at 484. 19 Additionally, “[p]rison disciplinary proceedings are not part of a criminal prosecution, 20 and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. 21 McDonnell, 418 U.S. 539, 556 (1974). The minimum procedural protections prison officials 22 must provide an inmate facing disciplinary charges are: (1) a written notice of the charges at 23 least 24 hours before the disciplinary hearing; (2) a written statement by the factfinders 24 detailing the evidence relied upon and the reasons for the disciplinary action; (3) the right for 25 the inmate to call witnesses and present documentary evidence, unless doing so would be 26

27 1 The Court addresses this claim next, before addressing the claim for conspiracy that is alleged 28 second in Plaintiff’s complaint, because the cause of action for conspiracy refers to an agreement to violate Plaintiff’s Fourteenth Amendment rights. 1 unduly hazardous to institutional safety or correctional goals; and (4) assistance where the 2 issues presented are complex or the inmate is illiterate. See Wolff, 418 U.S. at 564–70. “Some 3 evidence” must also support the hearing officer’s decision, and the evidence must have some 4 indicia of reliability. Superintendent v. Hill, 472 U.S. 445, 455 (1985); accord Cato v. Rushen, 5 824 F.2d 703, 705 (9th Cir. 1987). The “some evidence” standard is minimally stringent, and 6 the relevant inquiry is whether “there is any evidence in the record that could support the 7 conclusion reached.” Hill, 472 U.S. at 455–56. 8 These protections “adhere only when the disciplinary action implicates a protected 9 liberty interest in some ‘unexpected matter’ or imposes an ‘atypical and significant hardship on 10 the inmate in relation to the ordinary incidents of prison life.’” Serrano v. Francis, 345 F.3d 11 1071, 1078 (9th Cir. 2003) (quoting Sandin, 515 U.S. at 484). 12 Here, Plaintiff alleges that he lost his outdoor yard for 30 days. However, this 13 deprivation is not so severe as to constitute an atypical condition of confinement such that 14 Plaintiff is constitutionally required to receive due process. See Crisp v. Duffy, No. 2:16-CV- 15 0288 DB P, 2017 WL 3284809, at *5 (E.D. Cal., Aug. 2, 2017) (finding no due process claim 16 where “Plaintiff states that he was assessed a 90-day loss of privileges (“LOP”), which 17 included the loss of visitation, loss of some yard privileges, [and] loss of dayroom, canteen 18 restrictions”); Van Mathis v. Graber, No. C 07–3498WHAR, 2008 WL 912932, at *2 (N.D. 19 Cal., Apr. 3, 2008) (“The only punishment imposed was a twenty-one day loss of privileges. 20 This is not sufficient to constitute an atypical condition of confinement, and thus plaintiff had 21 no due process rights in connection with the hearing.”); Pratt v. Hedrick, No. C 13–4557 SI 22 (PR), 2014 WL 280626, at *3 (N.D. Cal., Jan. 24, 2014) (“The only discipline Pratt identifies is 23 the 30 days loss-of-privileges status on the June 18, 2013 battery offense, but that alone does 24 not amount to an atypical and significant hardship under Sandin so as to trigger any need for 25 procedural protections under the federal constitution.”). 26 Additionally, Plaintiff does not allege that the RVR disciplinary hearing lacked any of 27 the procedural protections set forth in Wolff. Instead, Plaintiff claims that the RVR guilty 28 finding was not supported by any evidence. However, Plaintiff alleges that he received a 1 written disposition that stated the guilty finding was based on Romero’s RVR. Moreover, 2 Plaintiff describes the RVRs as setting forth Romero’s account of interactions with Plaintiff, in 3 which Plaintiff argued against wearing his ADA vest and giving up his old ID. While Plaintiff 4 appears to argue that the guilty finding was wrong because he believes his interactions with 5 Romero did not rise to the level of disobeying an order or unlawfully influencing a corrections 6 officer, the fact remains that the written decision identified some evidence in support of the 7 finding of guilt. 8 Plaintiff’s complaint thus fails to state a cognizable claim for violation of due process. 9 D. Conspiracy 10 Plaintiff’s next cause of action is for conspiracy. Plaintiff claims that Defendants 11 Romero and Bustos conspired to deprive Plaintiff of his constitutional rights in that Defendant 12 Bustos agreed to find Plaintiff guilty of Romero’s RVR even though there was not evidence to 13 support it. 14 To state a claim for conspiracy under 42 U.S.C. § 1983, plaintiff must plead specific 15 facts showing an agreement or meeting of minds between the defendants to violate his 16 constitutional rights. Woodrum v. Woodward Cty., 866 F.2d 1121, 1126 (9th Cir. 17 1989). Plaintiff must also show how an actual deprivation of his constitutional rights resulted 18 from the alleged conspiracy. Id. “‘To be liable, each participant in the conspiracy need not 19 know the exact details of the plan, but each participant must at least share the common 20 objective of the conspiracy.’” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 21 2002) (quoting United Steel Workers of Am. V. Phelps Dodge Corp., 865 F.2d 1539, 1541 (9th 22 Cir. 1989)). 23 Here, Plaintiff’s complaint fails to state a claim for conspiracy because Plaintiff has not 24 alleged an underlying violation of his constitutional rights for the reasons stated above, and also 25 because Plaintiff has not pled facts indicating that there was an agreement or meeting of the 26 mind between Romero and Bustos to deprive Plaintiff of his rights. Although Plaintiff claims 27 that the RVR was not supported by the evidence, Plaintiff does not allege any facts that indicate 28 1 a specific agreement between Romero and Bustos to find Plaintiff guilty without evidence or 2 otherwise deprive Plaintiff of his constitutional rights. 3 E. Cruel and Unusual Punishment 4 Plaintiff’s final cause of action asserts a claim for cruel and unusual punishment based 5 on deliberate indifference to Plaintiff’s mental, emotional, and physical well-being. Plaintiff 6 alleges that Defendants Romero and Bustos were deliberately indifferent to the stress they were 7 causing upon Plaintiff through issuing the RVRs, forcing Plaintiff to wear his ADA vest, and 8 denying Plaintiff exercise privileges for 30 days. 9 Under 42 U.S.C. § 1983, to maintain an Eighth Amendment claim based on prison 10 medical treatment, an inmate must show “deliberate indifference to serious medical 11 needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). In the Ninth Circuit, the test for deliberate 12 indifference consists of two parts. McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled 13 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, 14 the plaintiff must show a “serious medical need” by demonstrating that “failure to treat a 15 prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton 16 infliction of pain.’” Id. at 1059 (citing Estelle, 429 U.S. at 104). Second, the plaintiff must 17 show the defendant’s response to the need was deliberately indifferent. Id. at 1060. This second 18 prong—defendant’s response to the need was deliberately indifferent—is satisfied by showing 19 (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and 20 (b) harm caused by the indifference. Id. Indifference “may appear when prison officials deny, 21 delay or intentionally interfere with medical treatment, or it may be shown by the way in which 22 prison physicians provide medical care.” Id. at 1059 (quoting Hutchinson v. United States, 838 23 F.2d 390, 392 (9th Cir. 1988)). Yet, an “inadvertent [or negligent] failure to provide adequate 24 medical care” alone does not state a claim under § 1983. Id. (citing Estelle, 429 U.S. at 25 105). A prisoner need not show his harm was substantial; however, such would provide 26 additional support for the inmate’s claim that the defendant was deliberately indifferent to his 27 needs. Id. at 1060. If the harm is an “isolated exception” to the defendant’s “overall treatment 28 1 of the prisoner [it] ordinarily militates against a finding of deliberate 2 indifference.” Id. (citations omitted). 3 Plaintiff fails to allege a cognizable claim under these standards. Plaintiff does not 4 allege that he had a condition that required medical treatment, nor that Romero and Bustos 5 failed to treat such condition. Instead, Plaintiff appears to allege that Romero and Bustos’ 6 actions in issuing RVRs and assessing a loss of privileges from the resulting guilty findings 7 caused him stress. But having stress as a consequence of prison discipline is not the same as a 8 medical condition that Defendants had an obligation to treat. Plaintiff thus fails to identify a 9 medical condition requiring treatment, nor a purposeful failure by Defendants Romero and 10 Bustos to treat such a medical condition. 11 In sum, Plaintiff’s complaint fails to state any cognizable claim against any defendant. 12 V. LEAVE TO AMEND 13 Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, “the court should freely 14 give leave [to amend] when justice so requires.” However, the Court has discretion to deny 15 leave to amend if “it determines that the pleading could not possibly be cured by the allegation 16 of other facts” or is otherwise futile. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); 17 AmeriSourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006). A proposed 18 amended complaint is futile if it would be immediately subject to dismissal. Nordyke v. King, 19 644 F.3d 776, 788 n.12 (9th Cir.2011). 20 The Court’s review of Plaintiff’s First Amended Complaint (ECF No. 18), shows that 21 granting further leave to amend would be futile because Plaintiff’s FAC does not cure 22 deficiencies in the original complaint and also fails to state a cognizable claim against any 23 defendant. 24 As the Court informed Plaintiff in its Screening Order, “although he has been given the 25 opportunity to amend, it is not for the purpose of changing the nature of this suit or adding 26 unrelated claims. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” 27 complaints).” (ECF No. 13 at 16). “[W]here leave to amend is given to cure deficiencies in 28 certain specified claims, courts have held that new claims alleged for the first time in the 1 amended pleading should be dismissed or stricken.” Lake v. City of Vallejo, No. 2:19-CV- 2 01439-DAD-KJN, 2023 WL 5629233, at *2 (E.D. Cal. Aug. 31, 2023) (quoting Ketab Corp. v. 3 Mesriani & Assocs., No. 2:14-cv-07241-RSWL-MRW, 2015 WL 8022874, at *8 (C.D. Cal. 4 Dec. 4, 2015)). The rule that unrelated claims that involve different defendants must be brought 5 in separate lawsuits is intended “to ensure that prisoners pay the required filing fees—for the 6 Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any 7 prisoner may file without prepayment of the required fees.” Diaz v. CDCR, No. 1:23-CV- 8 01378-SAB-PC, 2024 WL 308246, at *2 (E.D. Cal. Jan. 26, 2024), report and recommendation 9 adopted, 2024 WL 732023 (E.D. Cal. Feb. 22, 2024) (citing George, 507 F.3d at 607). 10 Here, the Court granted Plaintiff leave to amend his complaint to cure deficiencies in 11 his claims against Defendant Romero, and “not for the purpose of changing the nature of this 12 suit or adding unrelated claims.” (ECF No. 13 at 16). Plaintiff’s allegations in his FAC, 13 however, concern a different defendant and a different incident that are entirely unrelated to the 14 events described in Plaintiff’s original complaint. Whereas in his original complaint, Plaintiff 15 described a series of disagreements with Romero regarding Plaintiff’s rights and obligations 16 when issued a cane and ADA vest, resulting in Romero issuing Plaintiff multiple RVRs in the 17 summer and fall of 2022, in his FAC, Plaintiff alleges that on January 16, 2023, Devilla 18 delayed Plaintiff’s nebulizer treatment. There is no overlap in parties or claims between the two 19 complaints. Allegations made in the amended complaint in no way cure the deficiencies in the 20 original complaint. Such unrelated claims that involve different defendants must be brought in 21 separate lawsuits; otherwise, Plaintiff would be circumventing the limitations PLRA imposes 22 on incarcerated plaintiffs as well as paying the filing fees required by the rules of this Court. 23 Moreover, granting leave to amend would be futile because Plaintiff’s FAC fails to state 24 a claim. Deliberate indifference is established only where the defendant subjectively “knows of 25 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 26 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 27 Deliberate indifference can be established “by showing (a) a purposeful act or failure to 28 respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” 1 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 2 104 (1976)) (citation omitted). Civil recklessness (failure “to act in the face of an unjustifiably 3 high risk of harm that is either known or so obvious that it should be known”) is insufficient to 4 establish an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 836–37 & n.5 5 (1994) (citations omitted). 6 Plaintiff’s FAC contains no allegations that Devilla knew that delaying nebulizer 7 treatment by about an hour constituted an excessive risk to Plaintiff’s health and safety, and 8 deliberately disregarded that risk. In fact, Plaintiff has not explained what risk, if any, does an 9 hour-long delay represent to his health, nor that Devilla knew of any risk. Further, it does not 10 appear that Plaintiff suffered any harm from the delay. Without these allegations, Devilla’s 11 conduct cannot constitute deliberate indifference. Toguchi, 391 F.3d at 1060 (“Deliberate 12 indifference is a high legal standard. A showing of medical malpractice or negligence is 13 insufficient to establish a constitutional deprivation under the Eighth Amendment.”) (citing 14 Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (“Mere medical malpractice does not 15 constitute cruel and unusual punishment.”) (citation omitted); Wood v. Housewright, 900 F.2d 16 1332, 1334 (9th Cir.1990) (stating that even gross negligence is insufficient to establish a 17 constitutional violation). 18 For these reasons, the Court concludes that granting Plaintiff further leave to amend 19 would be futile. 20 VI. MOTION TO APPOINT COUNSEL 21 Plaintiff asks for “a[n] attorney for help” because he “is not familiar with legal law but 22 strongly affirms the factual merits of his complaint.” (ECF No. 14 at 1). In addition, he states 23 that he has “difficulty understanding case laws, federal court rules etc.” and that the law library 24 is open only one day a week, and that’s only if the librarian shows up. (Id. at 2). Plaintiff argues 25 that he “had help nine months ago;” but now Plaintiff is at another facility and is “up for 26 transfer again,” and, therefore, asks for counsel. (Id.) 27 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 28 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 1 952 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 2 28 U.S.C. § 1915(e)(1). Mallard v. U.S. District Court for the Southern District of Iowa, 490 3 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request the 4 voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 5 Without a reasonable method of securing and compensating counsel, the Court will seek 6 volunteer counsel only in the most serious and exceptional cases. In determining whether 7 “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 8 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 9 complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted). 10 The Court has reviewed the record in this case and is recommending that this case be 11 dismissed because Plaintiff has failed to state a claim. Moreover, while Plaintiff has failed to 12 state any cognizable claim, it is not apparent that such failure is due to his inability to articulate 13 his claims as opposed to the lack of merit in his claims. Accordingly, the Court denies 14 Plaintiff’s motion to appoint counsel. 15 VII. CONCLUSION AND ORDER 16 The Court finds that Plaintiff’s complaint (ECF No. 1) fails to state any cognizable 17 claims. The Court previously provided Plaintiff with applicable legal standards, explained why 18 Plaintiff’s complaint failed to state a claim, and gave Plaintiff leave to file an amended 19 complaint, but Plaintiff chose to stand on his original complaint. Based on the review of the 20 subsequently filed First Amended Complaint (ECF No. 18), the Court also finds that granting 21 further leave to amend would be futile. In addition, Plaintiff failed to demonstrate exceptional 22 circumstances that warrant appointment of pro bono counsel. 23 Based on the foregoing, IT IS ORDERED that: 24 1. The Court’s Findings and Recommendations (ECF No. 17) are VACATED; 25 2. Plaintiff’s motion to appoint counsel (ECF No. 14) is DENIED. 26 And it is RECOMMENDED that: 27 3. This action be DISMISSED with prejudice for failure to state a claim; and 28 4. The Clerk of Court be directed to close the case. 1 These findings and recommendations will be submitted to the United States district 2 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 3 || thirty days (30) after being served with these findings and recommendations, Plaintiff may file 4 || written objections with the Court. The document should be captioned “Objections to Magistrate 5 || Judge’s Findings and Recommendations.” 6 Plaintiff is advised that failure to file objections within the specified time may result in 7 || the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 8 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 IT IS SO ORDERED. 'l || Dated: _ April 16, 2024 [sf ey — 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21