(PC) Dillingham v. Garcia

Opinion

1 2

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 JERRY DILLINGHAM, 1:19-cv-00461-AWI-GSA-PC

12 Plaintiff, ORDER FOR PLAINTIFF TO EITHER:

13 vs. (1) FILE AMENDED COMPLAINT NOT EXCEEDING 25 PAGES INCLUDING 14 J. GARCIA, et al., EXHIBITS

15 Defendants. OR

16 (2) NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY WITH THE 17 EXCESSIVE FORCE CLAIM AGAINST DEFENDANT J. GARCIA 18 AND THE MEDICAL CLAIMS AGAINST DEFENDANTS HARMON 19 AND DOZER FOUND COGNIZABLE BY THE COURT 20 THIRTY-DAY DEADLINE TO EITHER FILE 21 AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED 22

23 24 I. BACKGROUND 25 Jerry Dillingham (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 26 with this civil rights action pursuant to 42 U.S.C. § 1983. On April 9, 2019, Plaintiff filed the 27 Complaint commencing this action, which is now before the court for screening. 28 U.S.C. § 28 1915A. (ECF No. 1.) 1 II. SCREENING REQUIREMENT 2 The court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 4 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 5 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 6 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 7 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 8 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 9 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 10 A complaint is required to contain “a short and plain statement of the claim showing that 11 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 12 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 14 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 15 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 16 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 17 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 18 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 19 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 20 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 21 plausibility standard. Id. 22 III. SUMMARY OF COMPLAINT 23 Plaintiff is presently incarcerated at Kern Valley State Prison (KVSP) in Delano, 24 California, in the custody of the California Department of Corrections and Rehabilitation 25 (CDCR), where the events at issue in the Complaint allegedly occurred. Plaintiff names as 26 defendants Correctional Officer (C/O) J. Garcia, C/O J. Harmon, C/O D. Dozer, Sergeant Stane, 27 Lieutenant A. Sotelo, Warden C. Pfeiffer, S. Kernan (CDCR Secretary), R. Soto (inmate), K. 28 Brown (psychologist), and S. Chaiken (Head psychologist) (collectively, “Defendants”). 1 Plaintiff’s allegations follow1: 2 On June 7, 2018, Plaintiff was a new arrival at KVSP and was assigned housing in 3 Facility C Building C4-C-Sec., where dangerous Security Threat Groups (STG) – Radical white, 4 Mexican, and Negro2 gang members are housed. This is the most violent yard in the most 5 dangerous prison in California. 6 On June 9, 2018, two convicts came to Plaintiff’s cell stating, “We are STG gang 7 members.” (Complaint, ECF No. 1 at 8 ¶ 2.)3 They were Negroes. These unidentified inmates 8 threatened to murder, rape, and attack Plaintiff when he came out of the cell if he didn’t have his 9 incarceration crime paperwork to show them. They further stated, “There’s a convict in our C- 10 section that is going around telling other STG gang members that while he and you were at the 11 California Substance Abuse Treatment Facility in Corcoran, California, in 2016-2017, 12 correctional guards were sharing with other convicts your incarceration crimes paperwork and 13 the guard showed him what you’re in prison for.” (Id. at 9 ¶ 4.) They also stated, “While we are 14 killing, raping, beating you, KVSP guards are going to watch, because they know it’s going 15 down.” (Id. at ¶ 5.) They said the guards in this building -- meaning defendant Harmon -- were 16 also telling Bldg. C4 convicts about Plaintiff’s incarceration conviction. Plaintiff was terrified. 17 On June 10, 2018, one mixed-race and one Negro inmate came to Plaintiff’s cell 18 threatening him with murder and sexual assault for his incarceration conviction once Plaintiff 19 came out of the cell. Plaintiff did not see their faces well enough to identify them. Plaintiff was 20 too frightened to leave his cell to pick up his pain medication at the medical building. Plaintiff 21

22 1 Plaintiff’s allegations begin on June 7, 2018, the date he arrived at KVSP, and end just before 23 the Complaint was filed on April 1, 2019. However, Plaintiff’s allegations are not in chronological order. To clarify the order of events, the court has endeavored to document Plaintiff’s allegations in chronological order. If Plaintiff 24 chooses to file an amended complaint he should set forth his allegations in the statement of facts in chronological order when possible. 25 2 This term is used by Plaintiff throughout the Complaint. It is not the court’s term. 26 3 All page numbers cited herein are those assigned by the court’s CM/ECF system and not based 27 on the Plaintiff’s pagination of the Complaint. 28 1 has a mobility disability affecting his right hip, which is very painful. 2 On or about June 11, 2018, Plaintiff mailed defendant CDCR Secretary Kernan a memo 3 alerting him to the threats against Plaintiff seeking protection. Plaintiff received a supportive 4 response. (Exh. 8 and attached Form 22 response.)4 5 On June 12, 2018, defendant Harmon (floor custodial officer) and his partner informed 6 Plaintiff he was paged for a medical appointment. An hour and a half later the booth officer 7 opened Plaintiff’s cell door instructing him to report to defendant Harmon for escort. Plaintiff 8 asked the control booth officer why he had to be security escorted. The officer replied, “You’re 9 a new arrival orientation inmate. Since you haven’t been seen by the Facility Classification 10 Committee Administrators, it’s policy, for your safety. You’re like on protective custody status.” 11 (Id. at 10 ¶ 13.) 12 Plaintiff reported to defendant Harmon in his red paper orientation jumpsuit, lime green 13 disability ADA mobility impaired vest, with his mobility aid auxiliary cane issued for the 57- 14 year-old Plaintiff. Plaintiff asked why it took so long to get out of the cell for this medical 15 appointment. Harmon replied, “You will find out soon enough.” (Id. ¶ 16.) Plaintiff alerted 16 defendant Harmon about his safety concerns because of threats. Plaintiff asked Harmon to 17 protect him by placing waist chain handcuffs on Plaintiff and providing a safety escort out of the 18 building, through the yard, and to the medical building. Defendant Harmon said he wasn’t 19 escorting Plaintiff in handcuffs anywhere. He told Plaintiff to find a safe way to the medical 20 building on his own and to “get out my office.” (Id. at 11 ¶ 19.) Plaintiff felt that this angry 21 outburst by a white officer treated him, a Negro, differently than others (White, Mexican non- 22 classified branded [sic], labeled non-classified branded, not an identifiable class group like 23 Plaintiff, similarly situated.) 24 Fearfully, Plaintiff left the building at about 9:50am. To his left Plaintiff saw nine or 25 more unhandcuffed STGs of different races, extremist convicts housed in Building C4-C-Sec., 26

27 4 Plaintiff refers to exhibits throughout the Complaint, but the court did not receive any exhibits 28 attached to or submitted with the Complaint. 1 returning from the solitary punitive security gym yard. Defendant J. Garcia was singlehandedly 2 and recklessly escorting them as they lined up against the building with defendant J. Garcia 3 following behind them. Using his cane, Plaintiff veered far to the right to the administration 4 building to seek protection for his medical appointment. Defendant J. Garcia solicited a “C-over- 5 C”5 STG gang member to attack Plaintiff from behind when Plaintiff was not looking. Defendant 6 J. Garcia stood by and watched sadistically, directing his co-conspirator STG solicited hit man 7 to leave the building wall and then sadistically watched the assailant creep ten or more steps 8 directly toward Plaintiff for 25 seconds, unbeknownst to Plaintiff. STG convict Ramon Soto 9 struck Plaintiff with his fist eight to ten times, struck Plaintiff on the back of his head with 10 chopping blows to Plaintiff’s right arm and body while Plaintiff’s back was turned. Soto spun 11 Plaintiff around so he was facing Soto. Plaintiff shielded his face with his left hand trying to 12 keep his balance with the cane in his left hand. Plaintiff was unable to shield his face with his 13 right arm and Soto struck him on the chin and yanked Plaintiff to the ground by grabbing 14 Plaintiff’s right bicep, breaking it and causing extreme pain. Plaintiff, partially unconscious, lay 15 on the ground and defendant J. Garcia allowed his co-conspirator STG convict Soto to kick 16 Plaintiff three times, striking his body, head, and right arm. Only then was Garcia satisfied with 17 his solicited abuse victimization of Plaintiff. While Plaintiff was on the ground defendant Garcia 18 threw a chemical pepper spray grenade at Plaintiff, which exploded on Plaintiff’s right lower leg 19 causing 2nd and 3rd degree disfiguring chemical burns six to seven inches long and about eight 20 inches wide. 21 Then, defendant J. Garcia called off his co-conspirator hit man Soto. During this 22 attempted murder, Plaintiff did not resist any officer, break any prison rules, hit his attacker, or 23 strike him with his cane. Plaintiff never provided testimony that he defended himself from Soto’s 24 attack, though he testified to this in an excessive force video and administrative hearing for a 25 fraudulent cover-up Rules Violation report. Emergency medical staff responded with a 26 27 5 According to Plaintiff, a “C-over-C” convict, designated by the Warden at a classification administrator’s committee hearing, has perpetrated three or more rules violations of which the convict has been 28 found guilty during a six-month period. Plaintiff alleges that a C-over-C convict poses a substantial risk to the safety of other inmates and security of the institution and is restricted from programming with non-C-status inmates. 1 wheelchair and defendant J. Garcia picked Plaintiff up by his right bicep sadistically and threw 2 Plaintiff into the wheelchair causing Plaintiff to cry out in excruciating pain! Defendant Garcia 3 mockingly exclaimed, “Dillingham wanted protection, look at him now,” as Garcia and his 4 partners humiliated Plaintiff, laughing. (Id. at 14-15 ¶ 44.) 5 After Plaintiff was attacked he was wheeled to the prison infirmary where the nurse told 6 him that his attacker possibly caused him a severe right bicep rupture, an injury where the tendon 7 is detached from the bone. Later that day another nurse examined Plaintiff and made the same 8 diagnosis of Plaintiff’s disfigured right bicep, which caused Plaintiff level 9-11 debilitating pain. 9 When Plaintiff regained consciousness, he felt “irregulare [sic] anus symptoms and 10 uncertain confusing PREA6 circumstances, i.e., unwanted potential sexual contact,” triggering 11 his terror of contracting AIDS. (Id. at 22 ¶ 101.) It wasn’t until about 4:30pm that an officer 12 finally summoned medical care, after Plaintiff had alerted Officer Willis [not a defendant] at 13 2:30pm that he was suicidal and homicidal. On June 28, 2018, Plaintiff alerted Psychologist 14 Beach [not a defendant] about the circumstances of the confusing uncertain PREA incident he 15 experienced. Plaintiff was given a PREA video interview after he requested a copy and asked to 16 make it a public record. 17 [In the Complaint, Plaintiff discusses one of his other cases pending at this court, case 18 1:18-cv-00579-NONE-EPG (PC); Dillingham v. Garcia, in which he named F. Garcia as the lead 19 defendant. Plaintiff alleges that F. Garcia is a correctional officer at the California Substance 20 Abuse Treatment Facility and is related to defendant J. Garcia. Plaintiff claims that J. Garcia and 21 F. Garcia conspired together to murder Plaintiff, and they carried out their co-conspiracy when 22 inmate Ramon Soto attacked Plaintiff. Plaintiff alleges that F. Garcia threatened to cause 23 Plaintiff’s murder if Plaintiff continued to expose him to litigation and grievances, telling 24 Plaintiff, “No matter where you’re at, I can get to you [and] it’s going to hurt.” (Id. at 15:54.) 25 However, F. Garcia is not named as a defendant in the present case.] 26 On June 27, 2018, defendants Sergeant Stane and Lieutenant Sotelo summoned Plaintiff 27

28 6 Prison Rape Elimination Act 1 to their office to discuss Plaintiff’s alerting of custody staff about convicts threatening Plaintiff’s 2 life. “But for, Defendant J. Harmon, Bldg. C4 assigned convicts spreding [sic] Plaintiff’s 3 incarceration crime notoriety et al.” (Id. at 16 ¶ 59.) Plaintiff asked to have his single-cell status 4 restored and to be placed in Protective Administrative Segregation for Plaintiff’s protection. 5 Plaintiff alerted defendants Stane and Sotelo about his history of being assigned single- 6 cell status for his mental health, his safety, and others’ safety after he was attacked by a cellmate 7 on January 18, 2013 [at Salinas Valley State Prison], for being labeled a snitch. Mental health 8 doctors strongly warned the CDCR administrator and recommended that Plaintiff remain single- 9 celled for diagnosis of his psychosis. Plaintiff’s PTSD had become worse. Plaintiff heard voices 10 telling him to kill his celly before the celly kills him. On August 8, 2017, R.J. Donovan prison 11 revoked Plaintiff’s single-cell status. Since then Plaintiff has refused to accept all cellmates 12 brought to his assigned cell by officers. 13 Defendant Stane told Plaintiff, “Since you cannot identify the Building C4 convicts 14 threatening to kill or rape you, I and defendant Lt. Sotelo are sending you right back to Lower 15 C-Facility, Bldg. C4 – A section cell 103. Provide your own safety. Once you find out the names 16 or cell numbers of the STG gang members that have threatened to murder and rape you, then 17 send them to me.” (Id. at 17-18 ¶¶ 65, 66.) Unbeknownst to Plaintiff, after Plaintiff had disclosed 18 information during his interview, Defendants Stane, Sotelo, Harmon, and Dozer conspired to 19 deprive Plaintiff of safety, to exacerbate Plaintiff’s PTSD, flash backs, and panic attacks. 20 As defendant Dozer was escorting Plaintiff back to Facility C and he got closer to cell 21 103, Plaintiff saw a 290-pound big black convict that defendants Stane, Sotelo, and Harmon had 22 sadistically, retaliatorily, conspiratorially, diabolically rushed to put in Plaintiff’s cell while 23 Plaintiff was at the administration office with Stane, Sotelo, and Dozer. This triggered Plaintiff’s 24 terror, paranoia, and racing thoughts of past traumatic episodes. Plaintiff told Dozer that the 25 cellmate was triggering homicidal ideations [sic] in him, inducing his suicidal intentions, and 26 Plaintiff asked Dozer to summon medical suicide prevention care. Plaintiff panicked and lay 27 down on the dayroom floor, curled up in a fetal position. Defendant Dozer said, “We’re not 28 having none of that, you’re going in cell 103 to get what your kind got coming.” (Id. at 19 ¶ 74.) 1 Dozer grabbed Plaintiff, ordered the control booth officer to open cell 103, and threw Plaintiff 2 into the cell. Plaintiff was terrified. Subsequently the convict, M. Williams, was let out to 3 medication call. Plaintiff came out of the cell and told defendant Harmon that he was homicidal 4 and suicidal, hearing voices, and was going to kill his cellmate, then kill himself. Defendant 5 Harmon’s face got really red and his eyes bulged. He told Plaintiff that he was not getting away 6 this time and threatened to use his pepper spray on Plaintiff. Plaintiff expected to be escorted to 7 the shower or medical building to await suicide prevention medical care, but defendant Harmon 8 treated Plaintiff differently than the others and handcuffed him, using excessive force, and 9 dragged him back into cell 103 with convict Williams. This was a discriminatory hate crime, 10 deviation from protocol, facilitating Plaintiff’s suicidal and homicidal tendencies. Once back in 11 the cell with convict Williams, Plaintiff had hallucinations and the voices he heard warned him 12 that custody put the cellmate in the cell to try and kill Plaintiff again, “egging me on to put a bag 13 over his head, to smother him to death when he goes to sleep.” (Id. at 21 ¶¶ 92, 93.) Plaintiff 14 could not think straight, couldn’t determine if it was the hallucination or whether convict William 15 was looking at him like he was going to rape and kill Plaintiff. Convict Williams kept asking 16 Plaintiff that frightening red flag question, “What are you in prison for?” (Id. at 21 ¶94.) 17 The forced double-celling and presence of convict William triggered Plaintiff’s paranoia 18 and PTSD caused by past trauma from when correctional employees at Salinas Valley State 19 Prison disclosed that Plaintiff was a snitch, causing an in-cell stabbing on January 18, 2013. 20 Also, On March 5, 2017, [before Plaintiff arrived at KVSP], Corcoran staff caused solicited out- 21 of-cell attempted murder, strangulation, and beating. On April 2, 2017, Corcoran prison staff 22 caused a convict assault-and-battery attack on Plaintiff. Then on June 12, 2018, KVSP staff 23 defendants Harmon, J. Garcia (and F. Garcia [sic]), and convict Soto caused a solicited attempted 24 murder attack upon Plaintiff. These five past traumatic victimizations caused PTSD flashbacks, 25 panic attacks, black outs, and loss of consciousness. 26 On July 10, 2018, Plaintiff submitted a timely staff misconduct complaint log number 27 KVSP-0-18-02112 to the KVSP Appeals Coordinator’s Office, notifying the State about his 28 claim against defendant Harmon, defendant Garcia, and inmate Soto’s actions. Due to not 1 receiving a response, Plaintiff re-submitted a copy on July 22, 2018, with the original submission 2 date. On July 27, 2018, contrary to the IAO7 prison officials’ rulebook, Plaintiff’s complaint was 3 cancelled at the Second Level because of a time constraint violation. On February 27, 2019, 4 KVSP completed the inquiry. Based on Plaintiff’s personal knowledge and information from 5 defendant Kernan’s agents and employees, when a 602 complaint is cancelled, but a claim therein 6 is characterized as a Staff Complaint, the IAO prison official notifies the inmate, “Due to the 7 nature of the screen out grievance issue, it has been referred to the Hiring Authority (i.e., 8 defendant Warden Pfieffer) to be heard processed through a separate Confidential Inquiry 9 Process into the Staff Misconduct, prison officials lose any authority to act on the subject of the 10 cancelled screen out grievance.” (Id. at 14 ¶ 48.) Thus, the claim is deemed exhausted (i.e., 11 regular process unavailable) when it is characterized as a Staff Complaint. 12 Plaintiff also submitted a staff misconduct complaint log number KVSP-0-18-01900 13 against defendants Stane, Sotelo, Harmon, and Dozer. It was heard at the amended second level 14 with a disposition finding: “J. Harmon, Dozer are guilty, liable for one of more of staff complaint 15 complain [sic] of injuries, claims, because they did violate CDCR Policy, i.e., excessive force; 16 Cal.Govt. Code § 844.6(a) & 845.6 Failure to summon medical care.” (Id. at 22-23 ¶ 106.) 17 As of the date of filing this suit, April 9, 2019, Plaintiff’s tendon, which was severed from 18 his bicep during the attempted murder, is still causing unbearable chronic level 9 pain. Plaintiff 19 also has disabling pain from attacks on his right shoulder, right bicep or back arm, right trap 20 muscle, right side of neck, right forearm, and right side of his back muscle. The severe pain 21 disrupts Plaintiff’s major life activities. Plaintiff is not a STG gang member or a gang member 22 in general. 23 Plaintiff requests as relief a declaratory judgment, injunctive relief, transfer to the 24 Atascadero psychiatric State Hospital, a permanent “S suffix Single-Cell classification, mental 25 health care, appointment of a guardian ad litem to prosecute this case, compensatory damages, 26 punitive damages, attorney’s fees, and costs of suit. 27

28 7 Plaintiff may be referring to the CDCR’s Office of Internal Affairs (OIA). 1 IV. PLAINTIFF’S CLAIMS 2 The Civil Rights Act under which this action was filed provides:

3 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 4 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 5 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 6 42 U.S.C. § 1983. 7 8 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 9 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 10 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 11 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 12 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 13 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law 14 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the 15 federal Constitution, Section 1983 offers no redress.” Id. 16 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 17 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution 18 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 19 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 20 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 21 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 22 which he is legally required to do that causes the deprivation of which complaint is made.’” 23 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 24 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 25 established when an official sets in motion a ‘series of acts by others which the actor knows or 26 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 27 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 28 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 1 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 2 1026 (9th Cir. 2008). 3 A. Official and Individual Capacities 4 Plaintiff brings claims against some of the Defendants in their official capacities and 5 others in their individual capacities. Plaintiff may not bring a suit for damages against 6 Defendants in their official capacities. “The Eleventh Amendment bars suits for money damages 7 in federal court against a state, its agencies, and state officials in their official capacities.” 8 Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). 9 However, the Eleventh Amendment does not bar suits seeking damages against state officials in 10 their personal capacities, Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 11 491 (9th Cir. 2003), or suits for declaratory or injunctive relief brought against state officials in 12 their official capacies, Austin v. State Indus. Ins. System, 939 F.2d 676, 680 fn.2 (9th Cir. 1991). 13 Therefore, Plaintiff fails to state a claim for damages against Defendants in their official 14 capacities, however, he is not barred by the Eleventh Amendment from seeking injunctive or 15 declaratory relief against Defendants in their official capacities, or from seeking money damages 16 from Defendants in their individual capacities. 17 B. Supervisory Liability and Personal Participation 18 Plaintiff names some defendants who hold supervisory positions, such as the Warden, the 19 Secretary of the CDCR, and the Head Chief Psychologist. Plaintiff is advised that “[l]iability 20 under [§] 1983 arises only upon a showing of personal participation by the defendant. A 21 supervisor is only liable for the constitutional violations of . . . subordinates if the supervisor 22 participated in or directed the violations, or knew of the violations and failed to act to prevent 23 them. There is no respondeat superior liability under [§] 1983.” Taylor v. List, 880 F.2d 1040, 24 1045 (9th Cir. 1989) (citations omitted). Plaintiff must demonstrate that each defendant, through 25 his or her own individual actions, violated Plaintiff’s constitutional rights. Iqbal, 556 U.S. at 26 676; Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Therefore, to the extent that Plaintiff 27 seeks to impose liability upon any of the defendants in their supervisory capacity, Plaintiff fails 28 to state a claim. 1 Under section 1983, Plaintiff must demonstrate that each defendant personally 2 participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) 3 (emphasis added). Plaintiff must demonstrate that each defendant, through his or her own 4 individual actions, violated Plaintiff’s constitutional rights. Iqbal, 556 U.S. at 676-77. 5 In the Complaint, Plaintiff fails to allege facts showing that Warden, the Secretary of the 6 CDCR, the Head Chief Psychologist, or Psychologist K. Brown personally acted against him. 7 Plaintiff cannot state a claim against any of these Defendants unless he demonstrates in his 8 allegations that each of them, identified by name, personally acted or failed to act, violating 9 Plaintiff’s rights. 10 Plaintiff shall be granted an opportunity to amend the Complaint to cure this deficiency. 11 C. Defendant Soto -- Inmate 12 In order for individual defendants to be held personally liable under 42 U.S.C. § 1983, 13 they must have acted under the color of state law. Jensen v. Lane Cty., 222 F.3d 570 (9th Cir. 14 2000). “The traditional definition of acting under color of state law requires that the defendant 15 in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only 16 because the wrongdoer is clothed with the authority of state law.’” Paeste v. Gov’t of Guam, 798 17 F.3d 1228, 1238 (9th Cir. 2015) (citing West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 18 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 19 1368 (1941)). In order to be considered “state action,” for purposes of § 1983 . . . the court must 20 find a sufficiently close nexus between the state and the private actor so that the action of the 21 latter may be fairly treated as that of the State itself.. 42 U.S.C.A. § 1983. Jensen v. Lane Cty., 22 222 F.3d 570 (9th Cir. 2000). 23 Plaintiff names inmate Ramon Soto as a defendant in this action alleging that Soto 24 assaulted him. Plaintiff cannot succeed in stating a claim against Soto in this § 1983 case because 25 Soto was not a state actor, and his assault against Plaintiff was not a state action. Therefore, 26 Ramon Soto must be dismissed as a defendant from this case. 27 /// 28 /// 1 D. F. Garcia 2 Plaintiff alleges in the Complaint that F. Garcia, the lead defendant in Plaintiff’s other 3 pending civil rights case 1:18-cv-00579-NONE-EPG (PC); Dillingham v. Garcia, conspired with 4 defendant J. Garcia, defendant in the present case, to murder Plaintiff. F. Garcia is not a 5 defendant in the present case. Plaintiff cannot state a claim in the present case against a defendant 6 named in another case unless he also names the defendant in the present case and makes sufficient 7 allegations against the defendant. Plaintiff’s Complaint must be complete in itself without 8 reference to a prior pleading. Local Rule 220. 9 If Plaintiff files an amended complaint and wishes to include F. Garcia as a defendant in 10 the amended complaint, he must name F. Garcia as a defendant in the amended complaint and 11 bring allegations and claims against F. Garcia without reference to his other pending case. The 12 amended complaint must be complete in itself. 13 E. Exhibits 14 Plaintiff refers to exhibits in his Complaint, but no exhibits were attached to the 15 Complaint or otherwise submitted with the Complaint. Because Plaintiff has not attached the 16 exhibits, they have not been incorporated by reference into the Complaint. Fed. R. Civ. P. 10(c). 17 Therefore, the Court’s screening is based upon Plaintiff’s allegations in the Complaint without 18 reference to any exhibits. 19 While they are permissible, Fed. R. Civ. P. 10(c), exhibits are not necessary in the federal 20 system of notice pleading, Fed. R. Civ. P. 8(a). The Court strongly suggests to Plaintiff that 21 exhibits should not be submitted where (1) they serve only to confuse the record and burden the 22 Court, or (2) they are intended as future evidence. If this action reaches a juncture at which the 23 submission of evidence is appropriate and necessary (e.g., summary judgment or trial), Plaintiff 24 will have the opportunity at that time to submit his evidence. 25 F. Excessive Force -- Eighth Amendment Claim 26 Plaintiff brings a claim for excessive force under the Eighth Amendment. “The objective 27 component of an Eighth Amendment claim is . . . contextual and responsive to contemporary 28 standards of decency.” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (internal quotation marks and 1 citations omitted). The malicious and sadistic use of force to cause harm always violates 2 contemporary standards of decency, regardless of whether or not significant injury is evident. Id. 3 at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive 4 force standard examines de minimis uses of force, not de minimis injuries)). “[W]henever prison 5 officials stand accused of using excessive physical force in violation of the Cruel and Unusual 6 Punishments Clause, the core judicial inquiry is . . . whether force was applied in a good-faith 7 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. at 7. 8 “In determining whether the use of force was wanton and unnecessary, it may also be proper to 9 evaluate the need for application of force, the relationship between that need and the amount of 10 force used, the threat reasonably perceived by the responsible officials, and any efforts made to 11 temper the severity of a forceful response.” Id. (internal quotation marks and citations omitted). 12 “The absence of serious injury is . . . relevant to the Eighth Amendment inquiry, but does not end 13 it.” Id. 14 Plaintiff alleges that defendant Harmon “used unnecessary unreasonable excessive force” 15 when he handcuffed Plaintiff and dragged him back to his cell. (Id. at 21:2-3.) This allegation 16 fails to state an excessive force claim because it uses conclusory language. Plaintiff has not 17 alleged facts demonstrating exactly what happened, why he believes he was treated with 18 excessive force, and what injuries he suffered. Therefore, Plaintiff fails to state an excessive 19 force claim against defendant Harmon for handcuffing him and dragging him back to his cell. 20 Plaintiff alleges that defendant Dozer grabbed Plaintiff, ordered the control booth officer 21 to open cell 103, and threw Plaintiff into the cell. Plaintiff may be able to state a claim for 22 excessive force against defendant Dozer if Plaintiff provides more information. As stated, 23 Plaintiff’s allegations against defendant Dozer are insufficient for the court to determine whether 24 Dozer’s actions rose to the level of excessive force. As with defendant Harmon, if Plaintiff 25 chooses to amend the complaint, Plaintiff must allege facts demonstrating exactly what 26 happened, why he believes he was treated with excessive force, and what injuries he suffered. 27 Therefore, Plaintiff fails to state an excessive force claim against defendant Dozer. 28 /// 1 However, the court finds that Plaintiff states a cognizable excessive force claim against 2 defendant J. Garcia for throwing a pepper spray grenade at Plaintiff, which exploded on 3 Plaintiff’s right lower leg causing second or third-degree burns six to seven inches long and about 4 eight inches wide. (Id. at 13 ¶¶ 35, 36.) 5 Based on the foregoing, the court finds that Plaintiff states a claim for use of excessive 6 force against J. Garcia, but not against any of the other Defendants. 7 G. Americans with Disabilities Act (ADA) Claim 8 To the extent that Plaintiff seeks to bring an ADA claim, Plaintiff fails to state a claim. 9 “To establish a violation of Title II of the ADA, a plaintiff must show that (1) [he] is a qualified 10 individual with a disability; (2) [he] was excluded from participation in or otherwise 11 discriminated against with regard to a public entity’s services, programs, or activities; and (3) 12 such exclusion or discrimination was by reason of [his] disability.” Lovell v. Chandler, 303 F.3d 13 1039, 1052 (9th Cir. 2002). Monetary damages are not available under Title II of the ADA absent 14 a showing of discriminatory intent. See Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 15 1998). To show discriminatory intent, a plaintiff must establish deliberate indifference by the 16 public entity. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). 17 Plaintiff has sufficiently established that he is disabled within the definition of the ADA. 18 However, Plaintiff has not identified a specific service, program, or activity he was denied based 19 upon that disability. Nor has he alleged facts showing discriminatory intent in excluding Plaintiff 20 from participation in a program, service, or activity. Therefore, Plaintiff fails to state a claim for 21 violation of the ADA. 22 H. Mental Health Care – Eighth Amendment Claim 23 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 24 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 25 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for 26 deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 27 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury 28 or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need 1 was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 2 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 3 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown 4 by “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm 5 caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference 6 may be manifested “when prison officials deny, delay or intentionally interfere with medical 7 treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. 8 This principle extends to an inmate’s mental-health-care needs. Smith v. Jenkins, 919 9 F.2d 90, 92–93 (8th Cir. 1990). Deliberate indifference by prison personnel to an inmate’s 10 serious mental-health-care-needs violates the inmate’s Eighth Amendment right to be free from 11 cruel and unusual punishment. Id. Deliberate indifference is shown by “a purposeful act or 12 failure to respond to a prisoner’s pain or possible medical need, and harm caused by the 13 indifference.” Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d at 1060). In order to state a 14 claim for violation of the Eighth Amendment, a plaintiff must allege sufficient facts to support a 15 claim that the named defendants “[knew] of and disregard[ed] an excessive risk to [plaintiff's] 16 health . . . .” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). 17 In applying this standard, the Ninth Circuit has held that before it can be said that a 18 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 19 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 20 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980) (citing 21 Estelle, 429 U.S. at 105–06). 22 Plaintiff alleges that defendants Harmon and Dozer knew that he was struggling with his 23 mental health, feeling fearful, and having thoughts about causing harm to himself and others, but 24 neither of them summoned mental health providers for evaluation and treatment of Plaintiff. 25 Plaintiff alleges that he was visibly disturbed and asking for help throughout the time Defendants 26 attempted to place him in a cell with a cellmate. Plaintiff clearly alerted the Defendants that he 27 was suicidal and was going to kill his cellmate and then himself. Plaintiff claims he suffered 28 immense mental distress that would be apparent to a lay person. Under Plaintiff’s allegations, 1 the court finds that Plaintiff was unconstitutionally denied adequate mental health care despite a 2 showing that such care was needed. 3 Therefore, the court finds that Plaintiff states a medical claim against defendants Harmon 4 and Dozer. 5 I. Equal Protection Clause 6 The Equal Protection Clause requires the State to treat all similarly situated people 7 equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 8 L.Ed.2d 313 (1985). This does not mean, however, that all prisoners must receive identical 9 treatment and resources. See Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972); Ward v. Walsh, 1 F.3d 10 873, 880 (9th Cir. 1993); Allen v. Toombs, 827 F.2d 563, 568–69 (9th Cir. 1987). 11 “To prevail on an Equal Protection claim brought under § 1983, Plaintiff must allege facts 12 plausibly showing that ‘“the defendants acted with an intent or purpose to discriminate against 13 [them] based upon membership in a protected class,’” (citing see Thornton v. City of St. Helens, 14 425 F.3d 1158, 1166 (9th Cir. 2005) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th 15 Cir. 2001)), or that similarly situated individuals were intentionally treated differently without a 16 rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553 17 U.S. 591, 601-02, 128 S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 18 120 S.Ct. 1073 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North 19 Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 20 Plaintiff alleges that defendant Harmon did not follow protocol as understood by Plaintiff 21 for treating a mental health inmate because Harmon did not confine Plaintiff somewhere to await 22 suicide prevention medical care, but instead handcuffed him and dragged him back into his cell. 23 Plaintiff claims that Harmon “treated Plaintiff differently than others similarly situated, by using 24 unnecessary unreasonable excessive force, handcuffed Plaintiff dragging [sic], manhandling 25 Plaintiff back into the cell 103 with convict Williams.” (ECF No. 1 at 21:1-4.) However, 26 Plaintiff has not alleged facts demonstrating that he was intentionally discriminated against on 27 the basis of his membership in a protected class, or that he was intentionally treated differently 28 1 than other similarly situated inmates without a rational relationship to a legitimate state purpose. 2 Therefore, Plaintiff fails to state a claim for relief for violation of his right to equal protection. 3 J. Failure to Protect 4 The Eighth Amendment protects prisoners from inhumane methods of punishment and 5 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 6 2006). Although prison conditions may be restrictive and harsh, prison officials must provide 7 prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer, 511 8 U.S. at 832-33 (internal citations and quotations omitted). Prison officials have a duty to take 9 reasonable steps to protect inmates from physical abuse. Id. at 833; Hearns v. Terhune, 413 F.3d 10 1036, 1040 (9th Cir. 2005). The failure of prison officials to protect inmates from attacks by 11 other inmates may rise to the level of an Eighth Amendment violation where prison officials 12 know of and disregard a substantial risk of serious harm to the plaintiff. E.g., Farmer, 511 U.S. 13 at 847; Hearns, 413 F.3d at 1040. 14 To establish a violation of this duty, the prisoner must establish that prison officials were 15 “deliberately indifferent to a serious threat to the inmate’s safety.” Farmer, 511 U.S. at 834. The 16 question under the Eighth Amendment is whether prison officials, acting with deliberate 17 indifference, exposed a prisoner to a sufficiently “substantial risk of serious harm” to his future 18 health. Id. at 843 (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). The Supreme Court has 19 explained that “deliberate indifference entails something more than mere negligence . . . [but] 20 something less than acts or omissions for the very purpose of causing harm or with the knowledge 21 that harm will result.” Farmer, 511 U.S. at 835. The Court defined this “deliberate indifference” 22 standard as equal to “recklessness,” in which “a person disregards a risk of harm of which he is 23 aware.” Id. at 836-37. 24 The deliberate indifference standard involves both an objective and a subjective prong. 25 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Id. at 834. 26 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate 27 health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). 28 To prove knowledge of the risk, however, the prisoner may rely on circumstantial evidence; in 1 fact, the very obviousness of the risk may be sufficient to establish knowledge. Farmer, 511 U.S. 2 at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). 3 Plaintiff claims that defendant J. Garcia directed inmate Soto to attack Plaintiff while 4 Garcia watched the attack and failed to intervene. However, Plaintiff uses vague and conclusory 5 language, alleging that “Defendant J. Garcia solicited a ‘C-over-C’8 STG gang member to attack 6 Plaintiff,” “stood by and watched sadistically,” and “direct[ed] his co-conspirator STG solicited 7 hit man to leave the building wall” and attack Plaintiff. Plaintiff fails to allege facts 8 demonstrating what he saw, heard, and otherwise personally experienced, and how he knew that 9 J. Garcia was working with Soto as a co-conspirator. Plaintiff contradicts himself when he 10 expresses his surprise at being attacked from behind, but also describes the scene where 11 defendant Garcia directed Soto to leave the side of the building and Garcia watched Soto 12 sadistically for 25 seconds as Soto crept up on Plaintiff from behind. Based on the above, the 13 court finds that Plaintiff fails to state a failure-to-protect claim against defendant J. Garcia. 14 Plaintiff also alleges that defendants Harmon, Sgt. Stane, Lt. Sotelo, and Secretary 15 Kernan knew he needed protection from inmates who were threatening him because of his 16 conviction, but failed to protect him. Here again, Plaintiff fails to allege facts demonstrating that 17 any of these defendants actually believed that he was at substantial risk of serious harm and yet 18 disregarded the risk, causing Plaintiff to be harmed. Plaintiff has alleged that defendants Stane 19 and Sotelo sent him away and told him to come back if he had names of inmates who threatened 20 him, which demonstrates that they were not concerned and may not have believed he was actually 21 at substantial risk of harm. Accordingly, the court finds that Plaintiff fails to state a failure-to- 22 protect claim against defendants Harmon, Sotelo, Stane, or Kernan. 23 Plaintiff also alleges that defendant Dozer failed to protect him from being double-celled 24 with a large cellmate who caused Plaintiff great fear and anxiety. Defendant Dozer escorted 25 Plaintiff to his cell and despite Plaintiff lying on the floor in a fetal position, returned him to the 26 27 8 According to Plaintiff, a C-over-C convict, designated by the Warden at a classification administrator’s committee hearing, has perpetrated three or more rules violations of which the convict has been 28 found guilty during a six-month period. A C-over-C convict poses a substantial risk to the safety of other inmates and security of the institution and is restricted from programming with non-C-status inmates. 1 cell without calling for mental health providers to examine him. Plaintiff fails to state a failure- 2 to-protect claim against defendant Dozer because there are no facts showing that Plaintiff was at 3 risk of physical harm sharing a cell, and in fact all the cellmate did was ask Plaintiff why he was 4 in prison. This allegation, and Plaintiff’s allegations of his panic and terror while imagining he 5 was in danger from the cellmate are not sufficient to state a failure-to-protect claim against 6 defendant Dozer. Therefore, the court finds that Plaintiff fails to state a failure-to-protect claim 7 against defendant Dozer for Dozer’s act of escorting him to the cell with the new cellmate and 8 insisting that he stay in the cell. 9 Plaintiff shall be granted leave to file an amended complaint to correct the deficiencies in 10 these claims found by the court. 11 K. Prison Appeals Process 12 Due process claims require that the plaintiff suffer “a deprivation of a constitutionally 13 protected liberty or property interest.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 14 149 F.3d 971, 982 (9th Cir.1998). “[I]nmates lack a separate constitutional entitlement to a 15 specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no 16 liberty interest in processing of appeals because no entitlement to a specific grievance procedure), 17 (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). “[A prison] grievance procedure is 18 a procedural right only, it does not confer any substantive right upon the inmates.” Azeez v. 19 DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 20 (8th Cir. 1993); see also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of 21 grievance procedure confers no liberty interest on prisoner). “Hence, it does not give rise to a 22 protected liberty interest requiring the procedural protections envisioned by the Fourteenth 23 Amendment.” Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 24 1986). 25 To the extent that Plaintiff seeks to state a claim based on any of the Defendants’ handling 26 or responding to his inmate appeals, Plaintiff cannot state a claim. Actions in reviewing a 27 prisoner’s administrative appeal generally cannot serve as the basis for liability in a section 1983 28 action. Buckley, 997 F.2d at 495. The argument that anyone who knows about a violation of the 1 Constitution, and fails to cure it, has violated the Constitution himself is not correct. “Only 2 persons who cause or participate in the violations are responsible. Ruling against a prisoner on 3 an administrative complaint does not cause or contribute to the violation.” Greeno v. Daley, 414 4 F.3d 645, 656-57 (7th Cir. 2005) accord George, 507 F.3d at 609-10; Reed v. McBride, 178 F.3d 5 849, 851-52 (7th Cir. 1999); Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir. 1996).; Haney v. 6 Htay, No. 1:16-CV-00310-AWI-SKO-PC, 2017 WL 698318, at *4–5 (E.D. Cal. 2017). 7 Thus, any allegation that any of the Defendants failed to properly handle or process 8 Plaintiff’s prison appeals, without more, fails to state a cognizable claim. 9 L. False Reports and Cover Up 10 Plaintiff alleges that defendant J. Garcia made false reports to conceal an Eighth 11 Amendment violation. 12 This allegation, even if true, does not raise a constitutional claim because there is no due 13 process right to be free from false disciplinary charges. The falsification of a disciplinary report 14 does not state a standalone constitutional claim. Canovas v. California Dept. of Corrections, 15 2:14-cv-2004 KJN P, 2014 WL 5699750, n.2 (E.D. Cal. 2014); see e.g., Lee v. Whitten, 2:12- 16 cv-2104 GEB KJN P, 2012 WL 4468420, *4 (E.D. Cal. 2012). There is no constitutionally 17 guaranteed immunity from being falsely or wrongly accused of conduct which may result in the 18 deprivation of a protected liberty interest. Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); 19 Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986). “Specifically, the fact that a prisoner may 20 have been innocent of disciplinary charges brought against him and incorrectly held in 21 administrative segregation does not raise a due process issue. The Constitution demands due 22 process, not error-free decision-making.” Jones v. Woodward, 2015 WL 1014257, *2 (E.D. Cal. 23 2015) (citing Ricker v. Leapley, 25 F.3d 1406, 1410 (8th Cir. 1994); McCrae v. Hankins, 720 24 F.2d 863, 868 (5th Cir. 1983)). Therefore, Plaintiff has no protected liberty interest against false 25 information being reported against him. 26 To the extent that Plaintiff attempts to raise a cover-up claim, it is premature. Allegations 27 that officials engaged in a cover-up state a constitutional claim only if the cover-up deprived a 28 plaintiff of his right of access to courts by causing him to fail to obtain redress for the 1 constitutional violation that was the subject of the cover-up. Dell v. Espinoza, No. 2 116CV1769MJSPC, 2017 WL 531893, at *6–7 (E.D. Cal. Feb. 7, 2017) (citing see Karim-Panahi 3 v. Los Angeles Police Dept., 839 F.2d 621, 625 (9th Cir. 1988) (cover-up “allegations may state 4 a federally cognizable claim provided that defendants’ actions can be causally connected to a 5 failure to succeed in the present lawsuit.”)); Rose v. City of Los Angeles, 814 F. Supp. 878, 881 6 (C.D. Cal. 1993). 7 A cover-up claim is premature when, as here, Plaintiff’s action seeking redress for the 8 underlying constitutional violations remains pending. See Karim-Panahi, 839 F.2d at 625 (claim 9 alleging police cover-up of misconduct was premature when action challenging misconduct was 10 pending); Rose, 814 F. Supp. at 881 (“Because the ultimate resolution of the present suit remains 11 in doubt, [p]laintiff’s cover-up claim is not ripe for judicial consideration.”) 12 M. Conspiracy 13 Plaintiff alleges that some of the Defendants conspired with each other to violate 14 Plaintiff’s rights. Conspiracy under § 1983 requires proof of “an agreement or meeting of the 15 minds to violate constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) 16 (internal quotation marks omitted) (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 17 865 F.2d 1539, 1540-41 (9th Cir. 1989)), and that an “‘actual deprivation of his constitutional 18 rights resulted from the alleged conspiracy,’” Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) 19 (quoting Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989) ). “‘To be liable, 20 each participant in the conspiracy need not know the exact details of the plan, but each participant 21 must at least share the common objective of the conspiracy.’” Franklin, 312 F.3d at 441 (quoting 22 United Steelworkers, 865 F.2d at 1541). A plaintiff must allege facts with sufficient particularity 23 to show an agreement or a meeting of the minds to violate the plaintiff’s constitutional rights. 24 Miller v. Cal. Dep’t of Soc. Servs., 355 F.3d 1172, 1177 n.3 (9th Cir. 2004) (citing Woodrum, 25 866 F.2d at 1126). Mere statement that defendants “conspired” or acted “in retaliation” is not 26 sufficient to state a claim. “Threadbare recitals of the elements of a cause of action, supported 27 by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 28 U.S. at 555). 1 The Ninth Circuit requires a plaintiff alleging a conspiracy to violate civil rights to “state 2 specific facts to support the existence of the claimed conspiracy.” Olsen v. Idaho State Bd. of 3 Med., 363 F.3d 916, 929 (9th Cir. 2004) (citation and internal quotation marks omitted) 4 (discussing conspiracy claim under § 1985); Burns v. County of King, 883 F.2d 819, 821 (9th 5 Cir. 1989) (“To state a claim for conspiracy to violate one’s constitutional rights under section 6 1983, the plaintiff must state specific facts to support the existence of the claimed conspiracy.” 7 (citation omitted)). 8 Plaintiff’s allegations of conspiracy under § 1983 fail to state a claim because his 9 allegations are conclusory and merely speculative. Though he uses phrases like “conspired,” 10 “agreed to aid and abet,” and “came to a meeting of minds,” he does not provide any specific 11 facts showing that any of the Defendants had an agreement to violate his constitutional rights. 12 There is absolutely no indication of any agreement between any of the Defendants. Therefore, 13 Plaintiff fails to state a claim for conspiracy. 14 N. State Law Claims 15 Plaintiff brings claims for assault and battery, hate crime, and violations of the Bane Act, 16 California Government Codes §§ 844.6(a) & 845.6, California Penal Code § 442.6, California 17 Civil Code § 52.1, and the CDCR Operations Manual. These are all state law claims. Plaintiff 18 is informed that violation of state tort law, state regulations, rules and policies of the CDCR, or 19 other state law is not sufficient to state a claim for relief under § 1983. Section 1983 does not 20 provide a cause of action for violations of state law. See Galen v. Cnty. of Los Angeles, 477 21 F.3d 652, 662 (9th Cir. 2007). To state a claim under § 1983, there must be a deprivation of 22 federal constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 (1976); also see 23 Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995); Gonzaga University v. Doe, 536 24 U.S. 273, 279 (2002). Although the court may exercise supplemental jurisdiction over state law 25 claims, Plaintiff must first have a cognizable claim for relief under federal law. See 28 U.S.C. § 26 1367. 27 Plaintiff alleges in the Complaint that he has complied with the Government Claims Act, 28 which requires exhaustion of state law claims with California’s Victim Compensation and 1 Government Claims Board. Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 208-09 (Cal. 2 2007); State v. Superior Court of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1239 (Cal. 2004); Mabe 3 v. San Bernardino Cnty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001); Mangold 4 v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995); Karim-Panahi, 839 F.2d 5 at 627. Plaintiff is required to specifically allege compliance in his complaint. Id. Plaintiff states 6 in the Complaint that he presented a timely written claim mailed on December 11, 2018, for 7 claims against defendants J. Garcia, J. Harmon, and Soto. (ECF No. 1 at 1:18-20.) Plaintiff also 8 states that he presented a late claim for claims against defendants J. Harmon and D. Dozer. (Id.) 9 Because Plaintiff has not submitted copies of his written claims, or evidence of when they 10 were presented to the Government Claims Board, what facts were presented, or the response to 11 Plaintiff’s claims, the court cannot determine if Plaintiff has complied with the Government 12 Claims Act and if so, for which of his state law claims brought in this § 1983 Complaint. 13 Therefore, at this juncture, the court shall dismiss Plaintiff’s state law claims for Plaintiff’s failure 14 to appropriately allege compliance, with leave to amend. To proceed with any of the state law 15 claims in this case, Plaintiff must submit evidence that he specifically complied with the written 16 claim requirement. To sufficiently present a claim, complainant must include “[t]he date, place 17 and other circumstances of the occurrence or transaction which gave rise to the claim asserted,” 18 and “[a] general description of the indebtedness, obligation, injury, damage or loss incurred so 19 far as it may be known at the time of the presentation of the claim.” Cal. Gov’t Code § 910; City 20 of W. Sacramento, California v. R & L Bus. Mgmt., No. 218CV00900WBSEFB, 2020 WL 21 820148, at *1 (E.D. Cal. Feb. 19, 2020) (quoting § 910). The factual basis for recovery in the 22 complaint must be “fairly reflected in the written claim.” Id. (quoting Watson v. State, 21 Cal. 23 App. 4th 836, 838 (2d Dist. 1993) (sustaining demurrer where legal theory for recovery in written 24 claim differed from that in the complaint); Donohue v. State of California, 178 Cal. App. 3d 795, 25 797 (1986) (same)). 26 O. Request for Guardian Ad Litem 27 Under Federal Rule of Civil Procedure 17(c)(2), “[t]he court must appoint a guardian ad 28 litem -- or issue another appropriate order -- to protect a minor or incompetent person who is 1 unrepresented in an action.” “Although the court has broad discretion and need not appoint a 2 guardian ad litem if it determines the person is or can be otherwise adequately protected, it is 3 under a legal obligation to consider whether the person is adequately protected. United States v. 4 30.64 Acres of Land, More or Less, Situated in Klickitat Cty., State of Wash., 795 F.2d 796, 805 5 (9th Cir. 1986). 6 The Ninth Circuit has held that when “substantial evidence” exists regarding the mental 7 incompetence of a pro se litigant, the district court should conduct a hearing to determine 8 competence so that a guardian ad litem may be appointed if appropriate. Allen v. Calderon, 408 9 F.3d 1150, 1153 (9th Cir. 2005); Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989). The 10 Ninth Circuit has not clearly stated what constitutes “substantial evidence” of incompetence 11 warranting such a hearing. See Hoang Minh Tran v. Gore, No. 10cv464-GPC (DHB), 2013 WL 12 1625418, at *3 (S.D. Cal. Apr. 15, 2013). However, the Ninth Circuit has indicated that sworn 13 declarations from the allegedly incompetent litigant, sworn declarations or letters from treating 14 psychiatrists or psychologists, and medical records may be considered in this regard. See Allen, 15 408 F.3d at 1152-54. Such evidence must speak to the court’s concern as to whether the person 16 in question is able to meaningfully take part in the proceedings. See AT&T Mobility, LLC v. 17 Yeager, 143 F.Supp.3d 1042, 1050 (E.D. Cal. 2015) (citing In re Christina B., 19 Cal.App.4th 18 1441, 1450 (1993)). The purpose of Rule 17(c) is to protect an incompetent person’s interests in 19 prosecuting or defending a lawsuit. See Gardner ex rel. Gardner v. Parson, 874 F.2d 131, 140 20 (3d Cir. 1989) Once the court determines that a pro se litigant is incompetent, the court generally 21 should appoint a guardian ad litem under Rule 17(c), but the Rule does not make such an 22 appointment mandatory. If another order would sufficiently protect the incompetent person’s 23 interests in the litigation in lieu of a guardian, the court may enter such an order. See 30.64 Acres, 24 795 F.2d at 805; Adelman ex rel. Adelman v. Graves, 747 F.2d 986, 989 (5th Cir. 1984) 25 Here, Plaintiff has not submitted substantial evidence of incompetence that speaks to the 26 court’s concern whether he is able to meaningfully take part in the proceedings for this case. 27 Plaintiff asserts that he is 57 years old, illiterate, slow to learn and comprehend, has a low TABE 28 score, has panic attacks, has flashbacks, and is in the disability placement program. Neither a 1 history of mental illness nor a previous determination of incompetency is sufficiently indicative 2 of a plaintiff's current competency status, and bare allegations of incompetency, unsupported by 3 current medical evaluations made by medical professionals, do not constitute meaningful 4 evidence of incompetency. See Jurgens v. Dudendorf, 2:14-cv-02780 KJM DAD, 2015 WL 5 4910536, at *3-4 (E.D. Cal. 2015). Plaintiff provides no letter from a mental health professional 6 or other “verifiable evidence” of his incompetence to trigger this court’s duty of inquiry. See 7 Ferrelli v. River Manor Health Care Center, 323 F.3d 196, 201-02 (2d Cir. 2003). Plaintiff 8 provides insufficient evidence to support a finding that “substantial evidence” exists regarding 9 his mental incompetence 10 Also, thus far, Plaintiff has shown an ability to articulate his claims and litigate this case 11 despite his mental health issues. Based on the record in this case, Plaintiff appears able to 12 adequately describe the claims he is attempting to assert, although Plaintiff allegedly received 13 assistance. He has also filed a motion for a temporary restraining order, objections to Judge 14 Austin’s findings and recommendations, and a motion for extension of time in this case. 15 Furthermore, Plaintiff filed a civil rights case in 1999, which he litigated for more than two years 16 until defendants prevailed on their motion for summary judgment, and he is currently proceeding 17 with three civil rights cases filed in 2018 and 2019, without counsel or a guardian ad litem. 18 Accordingly, the court finds that in the absence of verifiable evidence of incompetence, 19 there is no substantial question regarding Plaintiff’s competence and therefore no duty of inquiry. 20 Saddozai v. Spencer, No. 18-04511 BLF (PR), 2019 WL 6838701, at *2 (N.D. Cal. Dec. 16, 21 2019), reconsideration denied, (N.D. Cal. Apr. 16, 2020) (citing see Allen, 408 F.3d at 1152; 22 Ferrelli, 323 F.3d at 201-02). Plaintiff does not warrant appointment of a guardian ad litem under 23 Rule 17(c), and his request shall be denied. However, Plaintiff is advised that he may renew his 24 request at a later stage of the proceedings. 25 P. Relief Requested 26 Besides monetary damages, Plaintiff requests injunctive relief, declaratory relief, and 27 attorney’s fees. Plaintiff also requests to be given single-cell status, be transferred to Atascadero 28 State Hospital, and be provided mental health care. 1 Any award of equitable relief is governed by the Prison Litigation Reform Act, which 2 provides in relevant part:

3 “The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary 4 to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give 5 substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” 18 U.S.C. § 3626(a)(1)(A). 6 Neither single-cell status, mental health care, nor a transfer to Atascadero State Prison 7 would remedy the past violation of Plaintiff's constitutional rights, and therefore is not narrowly 8 drawn to correct the alleged past violations. Based on the nature of the claims at issue in this 9 action, which involve past conduct, Plaintiff is not entitled to injunctive relief and is therefore 10 confined to seeking money damages for the violations of his federal rights. 11 As for declaratory relief, such request should be denied because it is subsumed by 12 Plaintiff’s damages claim. See Rhodes v. Robinson, 408 F.3d 559, 565-66 n.8 (9th Cir. 2005) 13 (because claim for damages entails determination of whether officers’ alleged conduct violated 14 plaintiff’s rights, the separate request for declaratory relief is subsumed by damages action); see 15 also Fitzpatrick v. Gates, No. CV 00-4191-GAF (AJWx), 2001 WL 630534, at *5 (C.D. Cal. 16 Apr. 18, 2001) (“Where a plaintiff seeks damages or relief for an alleged constitutional injury 17 that has already occurred declaratory relief generally is inappropriate[.]”) 18 As for Plaintiff’s request for attorney’s fees, “[i]n any action or proceeding to enforce a 19 provision of section[] 1983. . . , the court, in its discretion, may allow the prevailing party. . . 20 reasonable attorney’s fees. . . .” 42 U.S.C. § 1988(b). However, Plaintiff’s contention that he is 21 entitled to attorney’s fees if he prevails in this case is without merit. Plaintiff is representing 22 himself in this action. Because Plaintiff is not represented by an attorney, he is not entitled to 23 recover attorney’s fees if he prevails. See Friedman v. Arizona, 912 F.2d 328, 333 n.2 (9th Cir. 24 1990), superseded by statute as stated in Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005); 25 Gonzalez v. Kangas, 814 F.2d 1411, 1412 (9th Cir. 1987); see also Rickley v. Cnty. of Los 26 Angeles, 654 F.3d 950, 954 (9th Cir. 2011) (“The Court accordingly adopted a per se rule, 27 categorically precluding an award of attorney’s fees under § 1988 to a pro se attorney-plaintiff.”) 28 1 Therefore, Plaintiff is not entitled to a declaration, injunctive relief, or attorney’s fees if 2 he prevails in this action. 3 V. CONCLUSION AND ORDER 4 For the reasons set forth above, the court finds that Plaintiff states cognizable claims in 5 the Complaint against defendant C/O J. Garcia for use of excessive force, and against defendants 6 Harmon and Dozer for inadequate medical care, in violation of the Eighth Amendment. 7 However, Plaintiff fails to state any other claims against any of the Defendants upon which relief 8 may be granted under § 1983. Plaintiff shall be granted leave to file an amended complaint to 9 attempt to cure the deficiencies in his other claims, outlined above, if he wishes. 10 Plaintiff shall be required to either file an amended complaint or notify the court of his 11 willingness to proceed only on the cognizable claims found by the court against C/O J. Garcia, 12 C/O J. Harmon and C/O D. Dozer. Should Plaintiff choose to proceed only on the excessive 13 force and medical claims found by the court, the court shall initiate service upon defendants J. 14 Garcia, Harmon, and Dozer. 15 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give 16 leave to amend when justice so requires.” The court will provide Plaintiff with an opportunity 17 to file an amended complaint attempting to cure the deficiencies identified above. Plaintiff is 18 granted leave to file an amended complaint within thirty days. Noll v. Carlson, 809 F.2d 1446, 19 1448-49 (9th Cir. 1987). 20 If Plaintiff chooses to amend the complaint, the amended complaint should be brief, Fed. 21 R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of 22 Plaintiff’s constitutional or other federal rights. Iqbal, 556 U.S. at 678; Jones, 297 F.3d at 934. 23 Plaintiff must set forth “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” 24 Id. at 678 (quoting Twombly, 550 U.S. at 555). There is no respondeat superior liability, and 25 each defendant is only liable for his or her own misconduct. Iqbal, 556 U.S. at 677. Plaintiff 26 must demonstrate that each defendant personally participated in the deprivation of his rights. 27 Jones, 297 F.3d at 934 (emphasis added). Plaintiff should note that although he has been given 28 the opportunity to amend, it is not for the purpose of adding new defendants for unrelated issues. 1 Plaintiff should also note that he has not been granted leave to add allegations of events occurring 2 after the initiation of this suit on April 9, 2019. Also, 25 pages is more than sufficient for the 3 amended complaint, including exhibits. If Plaintiff files an amended complaint that exceeds 25 4 pages including exhibits, the amended complaint shall be stricken for violation of the court’s 5 order. 6 Plaintiff is advised that an amended complaint supercedes the original complaint, Lacey 7 v. Maricopa County, 693 F.3d 896, 907 n.1 (9th Cir. 2012), and it must be complete in itself 8 without reference to the prior or superceded pleading. Local Rule 220. Once an amended 9 complaint is filed, the original complaint no longer serves any function in the case. Therefore, 10 in an amended complaint, as in an original complaint, each claim and the involvement of each 11 defendant must be sufficiently alleged. The amended complaint should be clearly and boldly 12 titled “First Amended Complaint,” refer to the appropriate case number, and be an original signed 13 under penalty of perjury. 14 Based on the foregoing, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s request for appointment of a guardian ad litem is DENIED, without 16 prejudice; 17 2. The court has found that Plaintiff states cognizable claims in the Complaint 18 against defendant J. Garcia for use of excessive force, and against defendants 19 Harmon and Dozer for inadequate medical care, both in violation of the Eighth 20 Amendment, but no other claims against any of the Defendants; 21 3. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 22 4. Within thirty (30) days from the date of service of this order, Plaintiff shall 23 either 24 (1) File a First Amended Complaint, not exceeding 25 pages including 25 exhibits; 26 Or 27 (2) Notify the court that he does not wish to file an amended complaint and is 28 instead willing to proceed only with the excessive force claim against 1 defendant J. Garcia and the medical claims against defendants Harmon 2 and Dozer found cognizable by the court, dismissing all other claims and 3 defendants; 4 5. If Plaintiff chooses to amend the complaint, he shall caption the amended 5 complaint “First Amended Complaint” and refer to the case number 1:19-cv- 6 00461-AWI-GSA-PC; 7 6. Plaintiff’s amended complaint may not exceed 25 pages including exhibits, and if 8 Plaintiff files an amended complaint exceeding 25 pages including exhibits, the 9 amended complaint shall be stricken for violation of the court’s order; and 10 7. Plaintiff’s failure to comply with this order shall result in a recommendation that 11 this case be dismissed. 12 IT IS SO ORDERED. 13

14 Dated: May 30, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 15

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