(PC) Drumwright v. Pascua

Opinion

MARQUISE LOUIS DRUMWRIGHT, Case No. 1:20-cv-01055-CDB (PC)

Plaintiff, FOURTH SCREENING ORDER FINDING COGNIZABLE CLAIMS v. (Doc. 21) F. PASCUA, et al., FINDINGS AND RECOMMENDATIONS Defendants. TO DISMISS CERTAIN CLAIMS AND DEFENDANT 14-DAY OBJECTION DEADLINE Clerk of Court to assign a District Judge

Plaintiff Marquise Louis Drumwright is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed under 42 U.S.C. § 1983. On June 14, 2023, Plaintiff filed a third amended complaint (“TAC”). (Doc. 21.) The Court finds Plaintiff has stated some cognizable claims and other claims should be dismissed. Plaintiff filed his original complaint on July 30, 2020. (Doc. 1.) Following screening, in the Court’s Order issued November 12, 2020, Plaintiff was directed to file either a first amended complaint, a notice of voluntary dismissal, or a notice of election to stand on his complaint. (Doc. 7.) On December 14, 2020, Plaintiff filed a document titled “Notice of Return for File in Response Thereof.” (Doc. 8.) The filing included a handwritten complaint. (Id. at 4-16.) On February 22, 2021, the Court issued its Order Requiring Plaintiff to Submit a Response, directing Plaintiff to file either a first amended complaint, a notice of voluntary dismissal, or a notice of election to stand on his complaint within 30 days. (Doc. 10.) Plaintiff filed a first amended complaint on April 30, 2021. (Doc. 13.) On April 10, 2023, the Court issued its Third Screening Order, directing Plaintiff to file either a third amended1 complaint curing the deficiencies identified in the order, a notice indicating he did not wish to file a third amended complaint and was willing to proceed only on the claims found cognizable by the Court, or a notice of voluntary dismissal. (Doc. 18.) Following an extension of time, Plaintiff filed a third amended complaint on June 14, 2023. (Doc. 21.) The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner raises claims that are frivolous or malicious, fail to state a claim on which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)–(iii); 28 U.S.C. § 1915A(b). These provisions authorize the court to dismiss a frivolous in forma pauperis complaint sua sponte. Neitzke v. Williams, 490 U.S. 319, 322 (1989). Dismissal based on frivolousness is appropriate where the claim is “based on an indisputably meritless legal theory” or “whose factual contentions are clearly baseless.” Id. at 327. The Court must dismiss a complaint if it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal theory. O’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008) (citing Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006)). // //

1 The Court construed Plaintiff’s complaint filed April 30, 2021, to be a second amended complaint. (See Doc. 18 at A. Federal Rule of Civil Procedure 8(a) A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). The statement must give the defendant fair notice of the plaintiff’s claims and the grounds supporting the claims. Id. at 512. Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Plausibility does not require probability, but it requires more than the “sheer possibility” of a defendant’s liability. Id. (quoting Twombly, 550 U.S. at 556). A claim is plausible when the facts pleaded allow the court to make reasonable inferences that the defendant is liable for wrongful conduct. Id. (quoting Twombly, 550 U.S. at 556). However, courts “are not required to indulge unwarranted inferences.” Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1064 (9th Cir. 2008). The Court construes pleadings of pro se prisoners liberally and affords them the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). This liberal pleading standard applies to a plaintiff’s factual allegations but not to his legal theories. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Moreover, a liberal construction of the complaint may not supply essential elements of a claim not pleaded by the plaintiff. Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997). The mere possibility of misconduct and facts merely consistent with liability is insufficient to state a cognizable claim. Iqbal, 556 U.S. at 678; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Vague and conclusory allegations of official misconduct are insufficient to withstand a motion to dismiss. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Dismissal of a pro se complaint without leave to amend is proper only if it is “absolutely clear that no amendment can cure the defect.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212–13 (9th Cir. 2012)); see Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (“Although leave to amend should be given freely, a district court may dismiss without leave where a plaintiff’s proposed amendments would fail to cure the pleading deficiencies and amendment would be futile.”). B. Linkage and Causation Section 1983 provides a cause of action for the violation of constitutional or other federal rights by persons acting under color of state law. See 42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred.” Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To state a claim under section 1983, a plaintiff must show a causal connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 423 U.S. 362, 373–75 (1976). The Ninth Circuit has held that a government actor may be liable under section 1983, if he performs an affirmative act, participates in another’s affirmative acts, or fails to perform an act which he is legally required to do that causes the prisoner to suffer a deprivation of rights. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (citing Sims v. Adams, 537 F.2d 829 (5th Cir. 1976)). In addition to direct participation, a government actor may be liable for “setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Preschooler II v. Clark Cnty. Sch. Bd. of Trustees, 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson, 588 F.2d at 743). IV. PLAINTIFF’S ALLEGATIONS2 Plaintiff names the following individuals employed at California State Prison-Corcoran: F. Pascua, A. Mendoza, E. Garcia, J. Cerda, J. Carranza, P. Vellido, M. Podsakoff, S. Reaves, A. Delos Santos, and M. E. Davison. (Doc. 21 at 1.) He seeks $1,600,000 in compensatory damages 2 The Court accepts Plaintiff’s allegations as true only for the purpose of the screening requirement under 28 U.S.C. § from each defendant, $322,000 in punitive damages, $666,666 “in nominal damages,”3 costs of suit and reasonable attorney fees,4 and any other relief the Court deems proper. (Id. at 17.) Transfer to Corcoran On February 13, 2018, Plaintiff was transferred from CCI-Tehachapi to Corcoran B-yard despite a Staff Separation Alert (“SSA”) arising from a battery against Lieutenant Delos Santos during Plaintiff’s previous period of incarceration at Corcoran. (Doc. 21 at 2.) The California Department of Corrections and Rehabilitation (“CDCR”) and superiors, including Warden M. Biter and Delos Santos, knew that Plaintiff was not to be returned Corcoran. (Id.) The transfer led to Plaintiff being subjected to “violations of Personal Safety (14th & 8th Amendment), Excessive Force (8th Amendment) & Retaliation (1st Amendment) of his Amended Rights.” (Id.) October 24, 2018, Inmate Attack or Altercation On October 24, 2018, Delos Santos, the “segregation authority,” served Plaintiff with an Administrative Segregation Unit (“ad-seg”) notice. (Doc. 21 at 2.) On that date, Plaintiff was attacked by another inmate on Facility 4B-Yard. (Doc. 21 at 6.) Plaintiff did not have prior communication with this inmate and did not know why he was attacked by the inmate. (Id.) After the attack, Plaintiff told “the proceeding sergeant”5 he felt unsafe at Corcoran and would be unable to program or stay at the facility because he had an SSA against prison officials there, including Delos Santos. (Id.) Plaintiff asked for an emergency transfer out of Corcoran because the SSA made him susceptible to abuse and risk of harm, such as that he faced on October 24, 2018. (Id.) After the incident, Plaintiff asked the other inmate why he attacked Plaintiff. (Doc. 21 at 6.) “[T]he inmate said some ‘higher-ups’ told him Plaintiff was ‘no-good’ and was a ‘SNY’ inmate.”6 (Id.) Plaintiff alleges this intimidated him “because he knew now certain prison

3 “Nominal damages, as the term implies, are in name only and customarily are defined as a mere token or ‘trifling.’” Cummings v. Connell, 402 F.3d 936, 943 (9th Cir. 2005).

4 Plaintiff, who is proceeding pro se, is not entitled to attorney’s fees. Kay v. Ehrler, 499 U.S. 432, 435 (1991).

5 Plaintiff does not identify this individual. However, the Court infers Plaintiff is referring to Sgt. Cerda. officials participated in or directed the violations and was the moving force of Plaintiff being attacked and sus[cept]ible to harm.” (Id.) Plaintiff asserts the attack “violated Plaintiff’s right of safety.” (Id.) Assault by Inmate During Therapy Group On November 7, 2018, Plaintiff was escorted by correctional officers Reaves and Pascua to the ad-seg treatment group room. (Doc. 21 at 2.) Prison officials are required to follow a state- mandated procedure to check each inmate’s handcuffs and shackles before leaving the treatment group room. (Id.) During group session, Pascua failed to follow this procedure, and one of the other inmates was not restrained to his chair. (Id. at 2-3.) The inmate attacked Plaintiff, who was restrained and unable to protect himself. (Id. at 3.) “PSW” Davison sat and witnessed the attack for “several moments” before running out of the room. (Id.) After three to four minutes, staff members and responders arrived at the group room “to separate the inmates from where Plaintiff was on the floor in a pool of blood.” (Id.) Reaves and Garcia were then seen reapplying the restraints on Plaintiff’s attacker. (Id.) Plaintiff, still in chains and leg shackles, was placed in a holding cell outside of the group room. Several minutes after being placed in the holding cell, Plaintiff was still actively bleeding from his puncture wounds. (Id.) Placement in the Correctional Treatment Center After a delayed emergency response, Pascua and Mendoza escorted Plaintiff to the Correctional Treatment Center (“CTC”). (Doc. 21 at 3.) Plaintiff was placed on a stretcher and put into a van. (Id.) After arriving to CTC, Plaintiff was kept in waist chains, his legs were shackled, and he was handcuffed to the bed. (Id.) He wanted to speak to medical personnel regarding his stab wounds, when an unidentified “Doe” became aggressive and ordered Plaintiff out of the bed. (Id.) Multiple prison officials threatened and intimidated Plaintiff to stop him from speaking with medical staff about receiving proper medical care and information about his puncture wounds. (Id.) Plaintiff states he “was denied this request” and mentioned he “would be following up with an appeal.” (Id.) Plaintiff asserts the unidentified Doe stated, “You want to play that game? You think of writing me up while I drag your ass out this bed.” (Doc. 21 at 3.) Doe uncuffed Plaintiff from the bed, grabbed him by his injured arm, began punching Plaintiff with closed fists, and physically forced him out of the bed and onto the floor. (Id. at 3-4.) As Plaintiff was being pushed down to the floor, Pascua stated, “If you write this shit up it will only get worse for you in the hole.” (Id. at 4.) Mendoza was on Plaintiff’s back applying pressure. (Id.) Pascua grabbed at Plaintiff’s ankle restraints, causing pain, chafing, and scraping. (Id.) Other responders reported to the area, and Plaintiff was placed into a wheelchair. (Id.) Plaintiff contends he needed additional medical attention, but he did not report the use of force because he feared hostility from Mendoza, Pascua, and Doe. (Id.) Escort to Housing Unit Defendants Cerda, Garcia, and Carranza escorted Plaintiff back to his cell at ad-seg. (Doc. 21 at 4.) Plaintiff was still in waist restraints and handcuffs. (Id.) When they reached Plaintiff’s cell door, Garcia abruptly lifted the handlebars of the wheelchair to force Plaintiff out of the chair. (Id.) Plaintiff attempted to catch his fall, but he was grabbed by the waist chains by Carranza and swung against the wall. (Id.) The three officers lifted Plaintiff off his feet and placed him in a prone position on the ground. (Id.) Carranza used his body weight and knee on Plaintiff’s body, and Cerda applied force to Plaintiff’s legs, causing more pain from his stabbing and shortness of breath. (Id.) While Plaintiff was still on the ground in waist restraints and leg shackles, Cerda “placed a triangular shaped bar to Plaintiff’s handcuffs … used so inmates don’t keep the handcuffs while being placed in the cell. (Id. at 4-5.) Plaintiff’s hands were still behind his back and the waist restraints still on when Vellido and Podsakoff arrived at the cell. (Doc. 21 at 5.) Vellido yanked at the restraint bar causing Plaintiff’s arms to stretch beyond his back and causing him to strain. (Id.) Defendants pushed the bar down, forcing Plaintiff’s back shoulders to hit the open food tray slot and door. (Id.) With Plaintiff’s arms sticking out of the tray slot, Plaintiff dropped to his knees to alleviate the pain in his shoulders. (Id.) Podsakoff unlocked the chain connected to Plaintiff’s handcuffs, the tray slot was locked, and the Defendants and responding staff left, with Plaintiff still chained around the waist, cuffed behind his back, and in leg retrains. (Id.) Medical Evaluation After 20 minutes or more, Vellido and Podsakoff returned to remove Plaintiff for a cell- front examination by Psychiatric Technician R. Covarrubias. (Doc. 21 at 5.) Plaintiff was taken to the ad-seg rotunda for medical treatment. (Id.) His puncture wounds were treated with hydrogen peroxide, cotton, and clear tape to prevent further bleeding. (Id.) Plaintiff’s lips and other markings were noted. (Id.) Plaintiff was escorted back to his cell front, where the waist restraints and leg shackles were finally removed by Podsakoff. (Id.) When Plaintiff entered the cell, the handcuffs were removed from his wrists by Vellido. (Id.) A. Defendant Delos Santos 1. Supervisory Liability Plaintiff alleges generally that “Defendant Delos Santos is liable for the constitutional violation[s] under supervisory liability.” (Doc. 21 at 6.) Delos Santos knew Plaintiff was not to be placed at Corcoran but “implemented the policy to place Plaintiff in [ad-seg]” because of the SSA. (Id. at 6-7.) As the segregation authority, Delos Santos acted or failed to act despite the substantial risk of harm to Plaintiff. (Id. at 7.) Delos Santos had a “duty to make aware to his preceding officials that Plaintiff was being placed inside the prison, so they could secure Plaintiff’s protection.” (Id.) By “using the SSA” to implement “an official policy” to place Plaintiff in ad-seg without securing his protection, “Defendant Delos Santos led to Plaintiff being subjected to violations of personal Safety & Excessive Force.” (Id.) Liability may not be imposed on supervisory personnel for the actions or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77; see Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013) (“Vicarious liability may not be imposed on a supervisor for the acts of lower officials in a § 1983 action.”). “A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Supervisory liability may also exist without any personal participation if the official implemented “a policy so deficient that the policy itself is a repudiation of the constitutional rights and is the moving force of the constitutional violation.” Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations & quotations marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970). “The requisite causal connection may be established when an official sets in motion a ‘series of acts by others which the actor knows or reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II v. Clark Cnty. Sch. Bd. of Trustees, 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson, 588 F.2d at 743); cf. Lemire, 726 F.3d at 1074-75 (prison supervisory official may be liable if “personally involved in the constitutional deprivation or a sufficient causal connection exists between the supervisor’s unlawful conduct and the constitutional violation”) (quoting Lolli v. Cnty. of Orange, 351 F.3d 410, 418 (9th Cir. 2003)). To prove liability for an action or policy, the plaintiff “must . . . demonstrate that his deprivation resulted from an official policy or custom established by a . . . policymaker possessed with final authority to establish that policy.” Waggy v. Spokane Cnty. Wash., 594 F.3d 707, 713 (9th Cir. 2010). When a defendant holds a supervisory position, the causal link between such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979). Vague and conclusory allegations concerning the involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey, 673 F.2d at 268. The Court must determine whether the TAC contains sufficient factual allegations to state a claim that is plausible on its face. Iqbal, 556 U.S. at 679. This is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The word, “policy,” must also “be consistent with the word’s ordinary definition.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). Plaintiff attempts to impose supervisory liability by characterizing Delos Santos’s placement of Plaintiff in ad-seg as an official policy. According to Plaintiff, Delos Santos implemented a policy to place Plaintiff in ad-seg despite knowledge of substantial risk of harm to Plaintiff, and this policy resulted in the use of excessive force against him. This argument defies common sense and ordinary usage of the term “policy” in the context of Plaintiff’s assignment to ad-seg. Plaintiff does not specify what, exactly, the alleged policy mandates or that Delos Santos had policy-making authority for Corcoran or CDCR. Instead, the allegations indicate Plaintiff’s placement in ad-seg despite the SSA was an isolated decision by Delos Santos affecting only Plaintiff, rather than an institutional course of action. Moreover, the facts do not support the conclusory allegations that Delos Santos participated in or directed the violations, knew of, and failed to prevent the attacks on Plaintiff, or implemented a policy that is constitutionally deficient and the moving force of the alleged constitutional violations. Plaintiff’s allegation that “higher-ups” told the first attacking inmate Plaintiff was “no- good” and was an “SNY” is too vague to attribute causation of the October 2018 attack to Delos Santos. Under the circumstances of this case, Plaintiff is unable to hold Delos Santos liable for the unconstitutional actions of his subordinates. 2. Eighth Amendment Threat to Safety Plaintiff sues Delos Santos for deprivation of personal safety for transferring Plaintiff back to Corcoran and placing him in ad-seg despite the SSA. (Doc. 21 at 7.) According to Plaintiff, this act [s]hows a deliberate indifference that Plaintiff was incarcerated under conditions posing a substantial risk of harm. This includes the altercation involving Plaintiff on Oct 24th, 2018 . . . . at Corcoran. Given Plaintiff should not have been transferred or in the prison itself. This altercation violated Plaintiff’s right to protection against these risk[s] of harm, health, & safety. (Id.) Plaintiff further alleges he was subjected to constitutional violations because he was in ad- seg under Delos Santos’s authority. To state a claim for threat to safety, an inmate must allege facts to support that he was incarcerated under conditions posing a substantial risk of harm and that prison officials were “deliberately indifferent” to those risks. Farmer, 511 U.S. at 834; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Deliberate indifference is one form of the “unnecessary and wanton infliction of pain,” that is central to an Eighth Amendment violation. Estelle v. Gamble, 429 U.S. 97, 104 (1976). “Deliberate indifference is a high legal standard.” Edmo v. Corizon, Inc., 949 F.3d 489, 494 (9th Cir. 2020) (quoting Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)). To adequately allege deliberate indifference, a plaintiff must set forth facts to support that a defendant knew of, but disregarded, an excessive risk to inmate health and safety. Farmer, 511 U.S. at 837; Austin v. Terhune, 367 F.3d 1167, 1172 (9th Cir. 2004). Essentially, Plaintiff’s deliberate indifference claim is an alternative effort to hold Delos Santos vicariously liable for the Eighth Amendment violations of his subordinates on October 24, 2018. Again, the allegations fail to establish Delos Santos participated in or directed the violations, knew of, and failed to prevent the attacks on Plaintiff, or implemented a policy that is constitutionally deficient and the moving force of the alleged constitutional violations. Thus, the TAC fails to state a cognizable Eighth Amendment claim against Delos Santos for the threat to Plaintiff’s safety by placement in ad-seg. 3. Eighth Amendment Failure to Protect Plaintiff similarly alleges Delos Santo failed to protect Plaintiff from the stabbing by a fellow inmate and the force used by correctional officers on November 7, 2018. The Eighth Amendment requires prison officials to protect prisoners from violence at the hands of other prisoners because “being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.” Farmer, 511 U.S. at 833- 34; Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009). In a “failure-to-protect” claim, a prisoner must show that a prison official’s act or omission (1) was objectively, sufficiently serious, and (2) the official was subjectively, deliberately indifferent to inmate’s health or safety. Farmer, 511 U.S. at 834; Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). Under the objective prong, “[w]hat is necessary to show sufficient harm for the purposes of the Cruel and Unusual Punishment Clause depends on the claim at issue.” Hudson v. McMillian, 503 U.S. 1, 8 (1992). For a failure-to-protect claim, the prisoner must show that he was placed in conditions that posed a substantial risk of serious harm. Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The subjective prong requires “more than ordinary lack of due care for the prisoner’s interest or safety.” Farmer, 511 U.S. at 835 (quotation omitted). To prove deliberate indifference, a plaintiff must show that the official knew of and disregarded an excessive risk to inmate safety. Id. at 837. The obviousness of the risk may be sufficient to establish knowledge. See id. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). The prisoner may demonstrate that the risk was obvious due to the prisoner’s personal characteristics or conditions within the prison. See Lemire, 726 F.3d at 1078. A plaintiff alleging an Eighth Amendment violation must “demonstrate that the defendants’ actions were both an actual and proximate cause of [his] injuries.” Lemire, 726 F.3d at 1074. “The requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Johnson, 588 F.2d at 743-44. Although Defendant Delos Santos used his authority to house Plaintiff in Corcoran in contravention of the SSA, the allegations do not establish that Delos Santos set in motion the attacks by other inmates and the use of force by correctional officers during the two incidents. Any connection between Delos Santos’s placement of Plaintiff in ad-seg and the harms Plaintiff suffered there are too attenuated to hold Defendant Delos Santos personally liable. Thus, Plaintiff does not state a plausible failure to protect claims against Delos Santos. 4. First Amendment Retaliation Plaintiff alleges Delos Santos used his position of authority and power to retaliate against Plaintiff by keeping him at Corcoran and placing him in “ASU” (ad-seg). (Doc. 21 at 8.) Delos Santos knew Plaintiff was subjected to harms, including the October 24, 2018, altercation and should have transferred him out of Corcoran. To state a claim for First Amendment retaliation, a plaintiff must allege five elements: (1) he engaged in protected activity; (2) the state actor took an adverse action against the plaintiff; (3) there is a causal connection between the adverse action and the protected conduct; (4) the defendant’s actions would chill or silence a person of ordinary fitness from protected activities; and (5) the retaliatory action did not advance a legitimate correctional goal. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). Although Plaintiff alleges Delos Santos “retaliate[d] against Plaintiff because of a prior altercation that dealt with Delos Santos at Corcoran State Prison,” Plaintiff again provides no other details of the altercation. (Doc. 21 at 8.) An altercation is not protected conduct under the First Amendment. Without more details, the prior altercation is not a basis for a retaliation claim. Plaintiff further alleges: Given Plaintiff was asking to engage in protected activity for the safety of his well being the assigned state actor, being Defendant. Delos Santos should have used his position of authority to make aware to his preceding officials that Plaintiff was being placed inside the prison, so they could serve Plaintiff’s safety and protection. (Id. at 9.) Even under a liberal construction, Plaintiff’s argument defies common sense, given the SSA was directed at Delos Santos because of this prior altercation. Thus, Delos Santos had no need to order his subordinate correctional officers to give Plaintiff particularized attention and protection (from Delos Santos). Plaintiff’s assertion that he engaged in protected activity is not supported by the factual allegations. Even if he did, Plaintiff has failed to allege the fourth element – that Delos Santos’s actions would chill or silence a person of ordinary fitness from protected activities. Because Plaintiff cannot establish that he engaged in protected activity, the TAC does not state a cognizable First Amendment retaliation claim against Defendant Delos Santos. 5. Fourteenth Amendment Equal Protection Plaintiff alleges Delos Santos violated his Fourteenth Amendment right to equal protection. (Doc. 21 at 10.) The Fourteenth Amendment provides: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “The Equal Protection Clause requires the State to treat all similarly situated people equally.” Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013). There are two different ways in which a plaintiff may state an equal protection claim. A plaintiff's first option is to allege “facts plausibly showing that the defendants acted with an intent or purpose to discriminate against [him] based upon membership in a protected class.” Id. (quoting Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 2005)). The second way a plaintiff may state a claim is “as a ‘class of one’ by alleging that [the] plaintiff has ‘been intentionally treated differently from others similarly situated and that there is no rational basis for the treatment.” Koboyashi v. McMulling, 2022 WL 3137958, at *23 (C.D. Cal. May 31, 2022) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). However, the Constitution does not require individuals who are, in fact, differently situated, to be treated equally under the law. Michael M. v. Super. Ct. of Sonoma Cnty., 450 U.S. 464, 469 (1981). Plaintiff makes no allegations concerning discrimination against him as a member of a protected class or as a class of one. Therefore, he has failed to state a cognizable equal protection claim. Plaintiff’s allegations suggest he intended to assert a due process claim. 6. Fourteenth Amendment Due Process Plaintiff asserts he has a protected liberty interest in not being held inside Corcoran and avoiding ad-seg. (Doc. 21 at 10.) The Fourteenth Amendment protects persons from deprivations of life, liberty, or property without due process of law. U.S. Const. amend. XIV. To state a due process claim, the plaintiff must first “establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted). “The Due Process Clause standing alone confers no liberty interest in freedom from state action taken ‘within the sentence imposed.’” Sandin v. Conner, 515 U.S. 472, 480 (1995) (quoting Hewitt v. Helms, 459 U.S. 460, 480 (1983)). Protected liberty interests may arise from the Constitution or from state law. Wilkinson, 545 U.S. at 221. “A state may create a liberty interest through statutes, prison regulations, and policies.” Chappell v. Mandeville, 706 F.3d 1052, 1063 (9th Cir. 2013) (citation omitted). When a protected liberty interest is implicated, the Due Process Clause provides certain procedural guarantees. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972). The amount of process or specific procedures required vary by context and the particular interest at stake. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). “The Due Process Clause standing alone confers no liberty interest in freedom from state action taken ‘within the sentence imposed,’” including housing or classification decisions. Sandin, 515 U.S. at 480. [T]he Due Process Clause [does not] . . . protect a duly convicted prisoner against transfer from one institution to another within the state prison system. Confinement in any of the State’s institutions is within the normal limits or range of custody.” Meachum v. Fano, 427 U.S. 215, 225 (1976). Thus, prisoners lack a liberty interest in being housed in a particular facility or unit, unless the state created a protected right “by placing substantive limitations on official discretion.” See Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983). “In California, there are no substantive limitations on prison officials’ discretion to refuse to transfer a prisoner . . . thus California has not created a protected liberty interest in prison transfers.” Hernandez v. Gomez, 163 F.3d 606 (9th Cir. 1998) (unpublished) (citing Cal. Penal Code § 5080; Cal. Code Regs. tit. 15, § 3379). Transfer to a different prison does not require due process solely because “life in one prison is much more disagreeable than in another.” Ward v. Carr, 467 F. App’x 721, 723 (9th Cir. 2012) (quoting Meachum, 427 U.S. at 225). Moreover, the Due Process Clause does not give prison inmates a liberty interest to remain within the general prison population. McFarland v. Cassady, 779 F.2d 1426, 1427-28 (9th Cir.1986). To establish a liberty interest in remaining free from administrative segregation, a prisoner must show that his placement in segregation resulted in an “atypical and significant hardship ... in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484; Richardson v. Runnels, 594 F.3d 666, 672 (9th Cir. 2010) (applying the “atypical and significant hardship” test contemplated in Sandin). Placement in segregation for administrative purposes “is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration,” and thus, generally does not violate a liberty interest protected by the Due Process Clause. Hewitt v. Helms, 459 U.S. 460, 468 (1983), abrogated in part on other grounds by Sandin, 515 U.S. 472. Where a substantive due process right is triggered by placement in administrative segregation, certain procedural safeguards must be met. Prison officials must, within a reasonable time after the prisoner's placement, conduct an informal, non-adversarial review of the evidence justifying the placement. See Hewitt, 459 U.S. at 476, abrogated in part on other grounds by Sandin, 515 U.S. 472. The prisoner must be provided notice of any charges against him and an opportunity to respond. See id. at 477. Here, Plaintiff has not alleged sufficient facts to indicate his ad-seg confinement was an atypical and significant hardship in relation to the ordinary incidents of prison life. Sandin, 515 U.S. at 484; Richardson, 594 F.3d at 672; see Medina v. Morris, 676 Fed. App’x 702, 703 (9th Cir. 2017) (dismissal of due process claim based on administrative segregation placement was proper where plaintiff failed to allege facts sufficient to show a due process violation); Everett v. Black, 738 Fed. App’x 537, 538 (9th Cir. 2018) (same). And “[t]ypically, administrative segregation in and of itself does not implicate a protected liberty interest.” Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003). Unlike the plaintiff in Serrano, Plaintiff has not alleged facts asserting that, due to “a novel situation” or unusual personal characteristics, his placement in administrative segregation presented an atypical and significant hardship compared to the level of hardship routinely faced by other inmates in the same setting. Rather, he simply states a legal conclusion that because there existed an SSA involving Delos Santos following a prior incident between them, his ad-seg placement was improper. Iqbal, 556 U.S. at 678 (factual allegations are accepted as true, but legal conclusions are not). Further, even assuming Plaintiff’s placement in ad-seg was an atypical and significant hardship considering the staff separation alert or SSA involving Delos Santos, Plaintiff fails to state a claim upon which relief can be granted. First, Plaintiff’s third amended complaint indicates he received notice of the October 24, 2018, ad-seg placement on that same date. (See Doc. 21 at 2.) Further, although Plaintiff asserts “[n]o sufficient procedural protections were provided” (id. at 10), there are no facts asserted to indicate Plaintiff was not provided an opportunity to respond. Rather, it would appear Plaintiff had such an opportunity because the third amended complaint alleges that he “asked for a forthwith transfer/emergency transfer out of ‘Cor-CSP’ because of the ‘SSA’ & because he was now susceptible to abuse an[d] risk of harm done to him [which] he faced on that day of October 24th, 2018” (id. at 6) and “he told the prison officials he felt unsafe at the facility” (id. at 10). Hewitt, 459 U.S. at 477. There are simply no facts alleging prison officials failed to conduct an informal, non-adversarial review of the evidence justifying Plaintiff’s ad-seg placement within a reasonable time. Id., at 476; see Jace v. Lirones, No. 1:22-cv-00419-ADA-CDB (PC), 2024 WL 991359, at *8 (E.D. Cal. Mar. 7, 2024) (“Plaintiff cannot state a claim for relief if he was provided all the necessary procedural protections and instead simply disagrees with the result”). Thus, Plaintiff received all the due process protections he was due. 7. Staff Security Alert In this case, Plaintiff has alleged more than he was simply transferred to Corcoran, refused transfer to another facility, and placed in ad-seg. The crux of Plaintiff’s claims is that Delos Santos violated the SSA by keeping Plaintiff housed at Corcoran and placing him in ad- seg, where Plaintiff suffered harm at the hands of other inmates and correctional officers. Plaintiff reasons that, if Delos Santos had not violated the SSA, the attacks would not have occurred, and therefore, Delos Santos must be held liable. Non-compliance with prison policies or grievance procedures, absent more, does not rise to the level of a constitutional violation. Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). The existence of regulations governing the conduct of prison employees does not necessarily entitle plaintiff to sue civilly to enforce the regulations or to sue for damages based on the violation of the regulations. Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (California prison regulations “do not establish a federal constitutional violation”); Nible v. Fink, 828 F. App’x 463 (9th Cir. 2020) (violations of title 15 of the California Code of Regulations do not create private right of action); Thompson v. Morales, No. CV-F-04-6554 REC SMS P, 2005 WL 8156816, at *4 (E.D. Cal. Apr. 14, 2005) (same), recommendations adopted, 2005 WL 8156813 (E.D. Cal. June 10, 2005). Even though Delos Santos was involved in the underlying SSA, Plaintiff does not have a liberty interest in enforcing the SSA. Therefore, Plaintiff cannot hold Delos Santos liable for a due process violation based on his noncompliance with the SSA. 8. Hardship Plaintiff may also raise a due process challenge to his placement in ad-seg based on conditions of confinement. Under state law, the existence of a liberty interest created by prison regulations is determined by focusing on the nature of the condition of confinement at issue. Wilkinson, 545 U.S. at 221-23 (citations & quotation marks omitted). Liberty interests created by prison regulations are generally limited to freedom from restraint that imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. “There is no single standard for determining whether a prison hardship is atypical and significant, and the ‘condition or combination of conditions or factors requires case by case, fact by fact consideration.’” Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (quoting Keenan v. Hall, 83 F.3d 1083, 1088 (9th Cir. 1996)). Courts may consider: (1) the duration of the confinement; (2) whether the conditions of the confinement were significantly harsher than those of prisoners in the general population or confined prisoners; (3) whether the confinement will invariably affect the duration of the prisoner’s sentence; and (4) whether the prisoner is confined for emergency reasons. See Brown v. Oregon Dep’t of Corr., 751 F.3d 983, 987 (9th Cir. 2014); Richardson v. Runnels, 594 F.3d at 672-73. Although being attacked by other inmates and correctional officers may be a significant hardship, given the numbers of excessive force and failure to protect cases filed in this district alone, the Court cannot find that such conditions are atypical. In this particular case, as discussed, the allegations do not sufficiently link Defendant Delos Santos’s violation of the SSA to the attacks. Beyond the two incidents of violence suffered by Plaintiff, he has not indicated that he was subjected to conditions of confinement that were harsher than those of other prisoners in ad-seg at Corcoran. Nor has Plaintiff indicated the length of the ad-seg confinement or that the ad-seg confinement affected the duration of his sentence. Upon consideration of the combinations of conditions or factors of Plaintiff’s confinement, the Court finds the TAC fails to state a due process claim against Delos Santos. Accordingly, the Court recommends dismissal of Defendant Delos Santos as a defendant. B. Claims Against Other Defendants Defendants Reaves and Pascua: Eighth Amendment Failure to Protect Plaintiff asserts Eighth Amendment claims against Reaves and Pascua for “personal safety” and failure to protect. The allegations in the claims are substantially the same and are based on their conduct at CTC on November 7, 2018. Reaves and Pascua knew that inmates at ad-seg needed to be secured at all times to protect prisoners from other prisoners. (Doc. 21 at 11- 12.) Yet, Defendants failed to follow procedures and knowingly failed to secure the attacker’s mechanical restraints properly twice and failed to search him for weapons. (Id. at 12.) As a result of Defendants’ deliberate indifference to the “obvious” risk of serious harm posed by the unsecured, armed attacker, Plaintiff was stabbed multiple times. (Id.) Construing Plaintiff’s allegations liberally, the Court finds the TAC states Eighth Amendment failure to protect claims against Defendants Reaves and Pascua. Defendants Mendoza and Pascua: Eighth Amendment Excessive Force The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. “It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). The “unnecessary and wanton infliction of pain” on prisoners “constitutes cruel and unusual punishment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal quotation marks & citation omitted). “Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.” Farmer, 511 U.S. at 834 (internal quotation marks & citation omitted). A correctional officer engages in excessive force in violation of the Eighth Amendment if he (1) uses excessive and unnecessary force under all the circumstances, and (2) “harms an inmate for the very purpose of causing harm,” and not “as part of a good-faith effort to maintain security.” Hoard v. Hartman, 904 F.3d 780, 788 (9th Cir. 2018). Thus, when an officer is accused of using excessive force, “the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6-7. In making this determination, the court may consider (1) the need for application of force, (2) the relationship between that need and the amount of force used, (3) the threat reasonably perceived by the responsible officials, and (4) any efforts made to temper the severity of a forceful response. Id. at 7. Plaintiff alleges Defendants Mendoza and Pascua used excessive force when he arrived at CTC. (Doc. 21 at 12.) Plaintiff alleges a Doe7 began punching Plaintiff and physically forced him out of the bed and onto the floor. (Id.) Plaintiff further alleges Mendoza was on Plaintiff’s back applying pressure, while Pascua grabbed at Plaintiff’s ankle restraints, causing pain, chafing, and scraping. (Id. at 12-13.) Accepting these allegations as true, the excessive force claims against Defendants Mendoza and Pascua may proceed. Defendant Pascua: First Amendment Retaliation Plaintiff adds a retaliation claim against Defendant Pascua. (Doc. 21 at 13-14.) He asserts that when he was handcuffed to the bed at CTC, he “mentioned that he would be following up with writing an appeal” because Pascua’s actions caused Plaintiff to be attacked. (Id. at 13.) Plaintiff further alleges that he stated to Pascua that he would appeal the fact he was not permitted to speak with medical staff about his medical care and that Pascua attempted to intimidate Plaintiff from filing an appeal and subjecting him to physical abuse. (Id.) Plaintiff asserts Pascua chilled Plaintiff’s right to engage in a protected activity. (Id. at 13-14.) Accepting these allegations as true, the retaliation claim against Defendant Pascua may proceed. Defendants Cerda, Garcia & Carranza: Eighth Amendment Excessive Force Plaintiff asserts excessive force claims against Defendants Cerda, Garcia, and Carranza, who had escorted Plaintiff from CTC back to his cell at ad-seg. (Doc. 21 at 14.) With Plaintiff still in waist restraints and handcuffs, Garcia forced Plaintiff out of the wheelchair and swung him against the wall. (Id.) After the three officers forced Plaintiff to the ground, they each applied force and caused Plaintiff pain, even though he was not resisting. (Id.) Carranza used his body weight and knee on Plaintiff, while Cerda applied force to Plaintiff’s legs; this caused him to suffer shortness of breath. (Id.) These allegations, liberally construed, are sufficient to state cognizable excessive claims against these Defendants. Defendants Vellido and Podsakoff: Eighth Amendment Excessive Force Plaintiff alleges that Vellido and Podsakoff also used excessive force when Plaintiff was in his cell with his arms through the tray slot, strained Plaintiff’s arms and yanked him against the door, and pushed the chain that connected Plaintiff’s handcuffs to the triangular bar. (Doc. 21 at 15.) These acts were done intentionally, maliciously, and sadistically to inflict physical, mental, and emotional pain. (Id.) Liberally construing the TAC, Plaintiff has stated cognizable Eighth Amendment excessive force claims against Defendants Vellido and Podsakoff. Defendant Davison: Eighth Amendment Failure to Protect Lastly, Plaintiff asserts an Eighth Amendment failure to protect claim against Defendant Davison. (Doc. 21 at 16.) He contends Davison “left in charge of the room given his security alarm specifically.” (Doc. 21 at 16.) Plaintiff asserts Davison was deliberately indifferent when he “ran out the treatment group room … leaving Plaintiff under attack [and] depriving Plaintiff of personal safety.” and causing irreparable injury and harm. (Id.) As a result of Davison’s actions, Plaintiff suffered irreparable injury and harm. (Id.) Plaintiff states Ulysses Z. Perez and Valentino Hightower, two other inmates present in the group room, witnessed the attack and related events. (Id.) Accepting Plaintiff’s allegations as true, Plaintiff plausibly alleges a cognizable failure to protect claim against Defendant Davison. Summary and Futility of Amendment In summary, Plaintiff has plausibly alleged the following claims: (1) Eighth Amendment failure to protect claims against Defendants Reaves, Pascua, and Davison; (2) Eighth Amendment excessive force claims against Defendants Mendoza, Pascua, Cerda, Garcia, Carranza, Vellido, and Podsakoff; and (3) First Amendment retaliation claim against Defendant Pascua. Plaintiff fails to allege any cognizable claim against Defendant Delos Santos or any other individual. Because Plaintiff has had several opportunities to cure the deficiencies in his complaints, including his allegations against Defendant Delos Santos, the Court finds it would be futile to provide Plaintiff further leave to amend his complaint in this regard. “A district court may deny leave to amend when amendment would be futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013); accord Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (“Courts are not required to grant leave to amend if a complaint lacks merit entirely”). Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall assign a district judge to this action. Further, IT IS HEREBY RECOMMENDED that: 1. This action proceed only on the following cognizable claims: (1) Plaintiffs Eighth Amendment failure to protect claims against Defendants Reaves, Pascua, and Davison; (2) Eighth Amendment excessive force claims against Defendants Mendoza, Pascua, Cerda, Garcia, Carranza, Vellido, and Podsakoff; and (3) First Amendment retaliation claim against Defendant Pascua, with the remaining claims to be dismissed; and 2. Defendant Delos Santos be dismissed from this action. These Findings and Recommendations will be submitted to the district judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(). Within 14 days of the date of service of these Findings and Recommendations, a party may file written objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the specified time may result in waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. '© | Dated: _ August 19, 2024 | br Pr UNITED STATES MAGISTRATE JUDGE 22