1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DIONTAE JOHAN DUNCAN, No. 1:23-cv-01190-NODJ-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF THE 13 v. ACTION 14 T, CISNEROS, et al. (ECF No. 13) 15 Defendants. 16 17 Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42 18 U.S.C. § 1983. 19 Plaintiff’s complaint in this action was filed on August 3, 2023. (ECF No. 1.) 20 On October 23, 2023, the Court screened the complaint, found that Plaintiff failed to state a 21 cognizable claim for relief, and granted Plaintiff thirty days to file an amended complaint. (ECF 22 No. 11.) 23 Plaintiff failed to file an amended complaint or otherwise respond to the October 23, 2023 24 order. Therefore, on December 5, 2023, the Court issued an order for Plaintiff to show cause why 25 the action should not be dismissed. (ECF No. 13.) Plaintiff has failed to respond to the order to 26 show cause and the time to do so has now passed. Accordingly, dismissal of the action is 27 warranted. 28 /// 1 I. 2 SCREENING REQUIREMENT 3 The Court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 7 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 8 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 9 A complaint must contain “a short and plain statement of the claim showing that the 10 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 13 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 14 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 15 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 16 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 17 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 18 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 19 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 20 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 21 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 22 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 23 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d 24 at 969. 25 II. 26 SUMMARY OF ALLEGATIONS 27 The Court accepts Plaintiff’s allegations in his complaint as true only for the purpose of 28 the screening requirement under 28 U.S.C. § 1915. 1 On or about June 17, 2021, when Plaintiff entered California Substance Abuse Treatment 2 Facility (SATF) he was targeted by delegated facility officers. Plaintiff was denied access to 3 courts, false Rules Violation Reports resulting in loss of good time credits were issued, physical 4 assault and harassment took place by confidential informants and other inmates. Plaintiff lost all 5 his legal property, religious property, and college books. 6 On or about August 26, 2021, Plaintiff encountered officer M. Pano on Facility D 7 recreation yard while awaiting a ducat to access the mental healthcare facility. Officer Pano 8 harassed Plaintiff and provoked his schizophrenia. Plaintiff invoked homicidal request and Pano 9 activated the alarm. Plaintiff was escorted to D-yard watch office holding cage. Plaintiff was 10 evaluated by Crisis Intervention Team (CIT) and interviewed. Plaintiff was cleared to return to 11 his cell and John Doe lieutenant advised Pano not to generate a Rules Violation Report. Pano 12 generated a RVR anyway and he was found guilty. Plaintiff filed an inmate grievance which was 13 denied. 14 On or about September 1, 2021, Plaintiff walled for urine analysis and was unable to go so 15 he asked for water permission. Officer Fagudo and another officer harassed Plaintiff at the water 16 fountain even after Plaintiff told them he had permission to get water to aid the urine test. 17 On or about October 1, 2021, Plaintiff was involved in a fight and was to be placed in 18 administrative segregation. Defendant Fagudo went to pack Plaintiff’s property and all of 19 Plaintiff’s property was packed, except his legal books, religious books, and college books. 20 Plaintiff told Fagudo about the property and he admitted he saw the property but thought it 21 belonged to his cellmate. Fagudo said he would go get the property but failed to do so. 22 Between June 17, 2021 and October 1, 2021, Plaintiff was placed in a holding cage for 23 mental health reasons. Officer M. Felix went to the room while Plaintiff’s CD player, 24 headphones and cloths were out on the top cage and began to yell at Plaintiff to remove the items 25 from the top cage. Felix yanked the CD player which got caught in the cage and yelled for 26 Plaintiff to untie it. Plaintiff’s headphones broke from being stuck in the cage. Plaintiff filed an 27 inmate grievance which was denied. 28 On or about October 1, 2021, Plaintiff is moved to another yard and his religious kosher 1 meals were targeted. 2 On or about October 7, 2021, while Plaintiff was assigned to the vocational electronics 3 career tech class, officers Perez and Rodriguez refused clothing permission and harassed Plaintiff. 4 They stole Plaintiff’s religious books and several other personal items. 5 On or about October 25, 2021, the vocational work officer refused to let Plaintiff go to 6 class because he did not have work boots. Other inmates were allowed regular shoes, not to 7 mention floor officers Perez and Rodriguez refused laundry for electronics class. 8 On or about November 1, 2021, Plaintiff was assaulted by an known confidential 9 informant and sent to administrative segregation for enemy concerns. 10 On or about November 30, 2021 until September 1, 2022, Plaintiff was released from 11 administrative segregation and three weeks later he was scheduled for a visit. When Plaintiff was 12 going to the visit, an unknown floor officer and sergeant said to go back way in handcuffs while 13 all the other inmates were going the front way. The sergeant pepper sprayed Plaintiff and when 14 he walked out to the yard he was thrown to the ground and put on a gurney then sent back to 15 administrative segregation. Plaintiff was charged with battery on an officer which was referred 16 for criminal charges to the District Attorney. While Plaintiff was in administrative segregation, 17 he was subject to retaliation which included denial of religious meals, denial of property 18 packages, stolen family photographs, and withholding of canteen privileges. 19 Officer Clausen went to Plaintiff’s cell to collect property for his transfer to Lancaster 20 State prison. Plaintiff had two pending security housing unit terms and two pending District 21 Attorney referrals. Lancaster does not have a security housing unit program. Out of paranoia, 22 Plaintiff pulled out a knife and refused to hand over his property to officer Clausen. 23 III. 24 DISCUSSION 25 A. Linkage Requirement Under Section 1983 26 Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 27 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 28 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 1 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of 2 substantive rights, but merely provides a method for vindicating federal rights elsewhere 3 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) 4 (citing Graham v. Connor, 490 U.S. 386, 393-94 (1989)) (internal quotation marks omitted). To 5 state a claim, Plaintiff must allege facts demonstrating the existence of a link, or causal 6 connection, between each defendant’s actions or omissions and a violation of his federal rights. 7 Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. 8 Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). 9 Plaintiff names several prison official as Defendants in the caption of the complaint, but 10 he fails to link them to any affirmative act or omission giving rise to an alleged constitutional 11 violation. 12 B. Access to Courts 13 Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 14 518 U.S. 343, 346 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Phillips v. 15 Hust, 588 F.3d 652, 655 (9th Cir. 2009). However, to state a viable claim for relief, Plaintiff must 16 show that he suffered an actual injury, which requires “actual prejudice to contemplated or 17 existing litigation.” Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing 18 Lewis, 518 U.S. at 348) (internal quotation marks omitted); Christopher v. Harbury, 536 U.S. 19 403, 415 (2002); Lewis, 518 U.S. at 351; Phillips, 588 F.3d at 655. 20 In either instance, “the injury requirement is not satisfied by just any type of frustrated 21 legal claim.” Lewis, 518 U.S. at 354. Inmates do not enjoy a constitutionally protected right “to 22 transform themselves into litigating engines capable of filing everything from shareholder 23 derivative actions to slip-and-fall claims.” Id. at 355. Rather, the type of legal claim protected is 24 limited to direct criminal appeals, habeas petitions, and civil rights actions such as those brought 25 under section 1983 to vindicate basic constitutional rights. Id. at 354. (quotation and citations 26 omitted). “Impairment of any other litigating capacity is simply one of the incidental (and 27 perfectly constitutional) consequences of conviction and incarceration.” Id. at 355. (emphasis in 28 original). 1 Moreover, when a prisoner asserts that he was denied access to the courts and seeks a 2 remedy for a lost opportunity to present a legal claim, he must show: (1) the loss of a non- 3 frivolous or arguable underlying claim; (2) the official acts that frustrated the litigation; and (3) a 4 remedy that may be awarded as recompense but that is not otherwise available in a future suit. 5 Phillips, 477 F.3d at 1076 (citing Christopher, 536 U.S. at 413–14, overruled on other grounds, 6 Hust v. Phillips, 555 U.S. 1150 (2009) ). In addition, the Constitutional right of access to the 7 courts is only a right to bring complaints to the federal court and not a right to discover such 8 claims or to litigate them effectively once filed with a court. Lewis, 518 U.S. at 354–55. 9 Plaintiff contends that he was denied access to the court. However, Plaintiff has failed to 10 demonstrate actual injury in the ability to file a nonfrivolous claim or that any named Defendant 11 frustrated such litigation efforts. Accordingly, Plaintiff fails to state a cognizable claim for denial 12 of access to the court. 13 C. False Rules Violation Reports 14 Plaintiff claims false allegations and disciplinary reports were filed against him. This 15 allegation, even if true, does not raise a constitutional claim because there is no due process right 16 to be free from false charges. The falsification of a disciplinary report does not state a standalone 17 constitutional claim. Canovas v. California Dept. of Corrections, 2:14-cv-2004 KJN P, 2014 WL 18 5699750, n.2 (E.D. Cal. 2014); see, e.g., Lee v. Whitten, 2:12-cv-2104 GEB KJN P, 2012 WL 19 4468420, *4 (E.D. Cal. 2012). There is no constitutionally guaranteed immunity from being 20 falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty 21 interest. Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Freeman v. Rideout, 808 F.2d 22 949, 951 (2d Cir. 1986)). “Specifically, the fact that a prisoner may have been innocent of 23 disciplinary charges brought against him and incorrectly held in administrative segregation does 24 not raise a due process issue. The Constitution demands due process, not error-free decision- 25 making.” Jones v. Woodward, 1:14-cv-2084-SAB (PC), 2015 WL 1014257, *2 (E.D. Cal. 2015) 26 (citing Ricker v. Leapley, 25 F.3d 1406, 1410 (8th Cir. 1994); McCrae v. Hankins, 720 F.2d 863, 27 868 (5th Cir. 1983)). Therefore, Plaintiff fails to state a due process claim for false disciplinary 28 action against him. 1 Further, “a prisoner in state custody cannot use a § 1983 action to challenge the fact or 2 duration of his confinement. He must seek federal habeas corpus relief (or appropriate state relief) 3 instead.” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (citations and internal quotation marks 4 omitted). In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the United States Supreme Court 5 held that to recover damages for “harm caused by actions whose unlawfulness would render a 6 conviction or sentence invalid,” a § 1983 plaintiff must prove that the conviction or sentence was 7 reversed, expunged, or otherwise invalidated. This “favorable termination rule” preserves the rule 8 that federal challenges, which, if successful, would necessarily imply the invalidity of 9 confinement or its duration, must be brought by way of petition for writ of habeas corpus, after 10 exhausting appropriate avenues of relief. Muhammad v. Close, 540 U.S. 749, 750-751 (2004). 11 Accordingly, “a state prisoner's § 1983 action is barred (absent prior invalidation)—no matter the 12 relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct 13 leading to conviction or internal prison proceedings)—if success in that action would necessarily 14 demonstrate the invalidity of confinement or its duration.” Wilkinson, 544 U.S. at 81-82. 15 While claims challenging the conditions of an inmate's confinement are cognizable under 16 Section 1983, an inmate's challenges to the fact or duration of confinement, which seek a speedier 17 release from custody, sound only in habeas. Heck, 512 U.S. 477; Preiser v. Rodriguez, 411 U.S. 18 475, 500 (1973); see also Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (A “prisoner in state 19 custody cannot use a § 1983 action to challenge ‘the fact or duration of his confinement.’ ” 20 (citation omitted)). Under the “favorable termination doctrine,” the district court must dismiss a 21 state prisoner's Section 1983 claim for damages if “judgment in favor of the plaintiff would 22 necessarily imply the invalidity of his conviction or sentence ... unless the plaintiff can 23 demonstrate that the conviction or sentence has already been invalidated.” Heck, 512 U.S. at 486- 24 87.duration of time to be served; Nonnette v. Small, 316 F.3d 872, 875 (9th Cir. 2002), cert. 25 denied, 540 U.S. 1218 (2004), and if the restoration of those credits “necessarily” would “affect 26 the duration of time to be served.” Muhammed v. Close, 540 U.S. 749, 754 (2004) (per curiam); 27 see also Nettles v. Grounds, 830 F.3d 922, 929 n.4 (9th Cir. 2016) (en banc) (“Heck applies only 28 to administrative determinations that ‘necessarily’ have an effect on ‘the duration of time to be 1 served[,]’ ” (citations omitted). 2 Here, Plaintiff challenges a guilty finding of a Rules Violation Report that resulted in the 3 loss of good time credits. Because reversal of the rules violation report finding would necessarily 4 result in a restoration of good time credits, it would also necessary affect the duration of 5 Plaintiff's confinement. Therefore, it is not cognizable in a section 1983 action. 6 D. Destruction/Confiscation of Property 7 The Due Process Clause of the Fourteenth Amendment of the United States Constitution 8 protects Plaintiff from being deprived of property without due process of law, Wolff v. 9 McDonnell, 418 U.S. 539, 556 (1974), and Plaintiff has a protected interest in his personal 10 property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). Authorized, intentional deprivations 11 of property are actionable under the Due Process Clause, see Hudson v. Palmer, 468 U.S. 517, 12 532, n.13 (1984); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985), but the Due Process 13 Clause is violated only when the agency “prescribes and enforces forfeitures of property without 14 underlying statutory authority and competent procedural protections,” Nevada Dept. of 15 Corrections v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (citing Vance v. Barrett, 345 F.3d 16 1083, 1090 (9th Cir. 2003)) (internal quotations omitted). 17 The Due Process Clause is not violated by the random, unauthorized deprivation of 18 property so long as the state provides an adequate post-deprivation remedy. Hudson v. Palmer, 19 468 U.S. at 533; Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). 20 Plaintiff's claim that certain items of his personal property were improperly confiscated 21 and/or destroyed fails to give rise to a cognizable claim for relief. Plaintiff's claim reflects a 22 random and unauthorized deprivation of property, which is not cognizable under section 1983. 23 Plaintiff's property claim may be actionable under state law, but such a claim must be brought in 24 state court rather than in federal court. Indeed, Plaintiff has an adequate post-deprivation remedy 25 under California law and therefore, he may not pursue a due process claim arising out of the 26 unlawful confiscation of his personal property. Barnett, 31 F.3d at 816-17 (citing Cal. Gov’t Code 27 §§ 810-895). Accordingly, Plaintiff fails to state a cognizable due process claim. 28 /// 1 E. Retaliation 2 “Within the prison context, a viable claim of First Amendment retaliation entails five 3 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 4 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate's 5 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 6 correctional goal. Rhodes v. Robinson, 408 F.3d 559 567-68 (9th Cir. 2005) (citations omitted). 7 Filing an inmate grievance is a protected action under the First Amendment. Bruce v. Ylst, 351 8 F.3d 1283, 1288 (9th Cir. 2003). 9 Although Plaintiff contends that certain property and/or privileges were destroyed and/or 10 denied, Plaintiff has failed to demonstrate that any Defendant took action because he was 11 exercising a constitutional right. Accordingly, Plaintiff has failed to state a cognizable retaliation 12 claim. 13 F. Denial of Kosher Meals 14 A plaintiff asserting a free exercise claim must show that the defendant's actions 15 substantially burden his practice of religion. See Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 16 2015). “A substantial burden ... place[s] more than an inconvenience on religious exercise; it must 17 have a tendency to coerce individuals into acting contrary to their religious beliefs or exert 18 substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Id. (internal 19 quotation marks and citations omitted). “[A] prison policy that intentionally puts significant 20 pressure on inmates ... to abandon their religious beliefs ... imposes a substantial burden on [the 21 inmate's] religious practice.” Shakur v. Schriro, 514 F.3d 878, 889 (9th Cir. 2008) (internal 22 quotation marks and citation omitted). However, the court has also recognized that limitations on 23 a prisoner's free exercise rights arise from both the fact of incarceration and valid penological 24 objectives. See McElyea v. Babbit, 833 F.2d 196, 197 (9th Cir. 1987). For instance, under the 25 First Amendment, the penological interest in a simplified food service has been held sufficient to 26 allow a prison to provide orthodox Jewish inmates with a pork-free diet instead of a completely 27 kosher diet. See Ward v. Walsh, 1 F.3d 873, 877-79 (9th Cir. 1993). 28 Courts have held that, where a plaintiff establishes that his need for a Kosher diet is a 1 sincerely held religious belief, denial of the diet is a substantial burden to his religious practice. 2 See Shakur, 514 F.3d at 885 (finding that prison's failure to provide kosher meals to Muslim 3 prisoner violated the Free Exercise clause); White v. Linderman, No. 11-cv-8152, 2013 WL 4 4496364, at *6 (D. Ariz. Aug. 22, 2013). Prisoners have a right to be provided with food 5 sufficient to sustain them in good health and which satisfies the dietary laws of their religion. See 6 McElyea v. Babbit, 833 F.2d at 198. 7 To state a claim under the Free Exercise Clause, an inmate must plausibly allege that a 8 prison official's actions (a) “substantially burden[ed]” the inmate's exercise of a sincerely-held 9 religious belief; and (b) did so in an unreasonable manner—i.e., the official's actions were not 10 “rationally related to legitimate penological interests.” See O’Lone v. Estate of Shabazz, 482 U.S. 11 342, 348-50 (1987); Jones v. Williams, 791 F.3d 1023, 1031, 1033 (9th Cir. 2015); see Haynes v. 12 Orel, No. 2:19-CV-1988 AC, 2021 WL 4355431, at *2 (E.D. Cal. Sept. 24, 2021). 13 Plaintiff fails to set forth sufficient facts to support his free exercise of religion claim. 14 Plaintiff merely contends that while in administrative segregation he was subjected to retaliation 15 which included denial of religious meals. Plaintiff does not allege that he was induced to 16 consume foods that violated his sincerely held religious beliefs. Plaintiff does not plead facts 17 plausibly showing that any non-program foods were violative by Plaintiff's sincerely held 18 religious beliefs. Plaintiff has also not alleged facts that the denial of the Kosher diet substantially 19 pressures him to violate or abandon his religious beliefs. Plaintiff has further failed to allege facts 20 establishing that the Defendants substantially burdened the practice of his religion by preventing 21 him from engaging in conduct mandated by his faith. Plaintiff has not plausibly alleged how 22 Defendants have placed a substantial burden on his religious exercise, and how, if at all, the 23 conduct alleged “prevented him from fulfilling the commandments” of his religion. At most, the 24 factual allegations allege that he was denied certain Kosher meals. Accordingly, Plaintiff fails to 25 state a cognizable claim for relief. 26 G. Conditions of Confinement 27 Plaintiff's placement in administrative segregation does not provide a basis for relief on 28 Eighth Amendment grounds. Administrative segregation is not categorically prohibited by the 1 Eighth Amendment, and the complaint lacks factual allegations describing any particular 2 conditions of plaintiff's confinement in ad seg that deprived him “of the minimal civilized 3 measure of life's necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). An alternative due 4 process claim is also unavailable on the facts alleged in the petition. The placement of an inmate 5 in administrative segregation in and of itself does not implicate a protected liberty interest. Sandin 6 v. Conner, 515 U.S. 472, 486 (1995); Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003). 7 Plaintiff has not shown that his administrative segregation placement was any different than that 8 of others similarly situated, that the length and degree of it was out of the ordinary, or that the 9 placement affected the duration of his sentence. See Serrano, 345 F.3d at 1078 (listing factors 10 considered when determining if prison hardship is atypical and significant). 11 H. Conspiracy 12 Conspiracy under § 1983 requires proof of “an agreement or meeting of the minds to 13 violate constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (internal 14 quotation marks omitted) (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 15 1539, 1540-41 (9th Cir. 1989)), and that an “ ‘actual deprivation of his constitutional rights 16 resulted from the alleged conspiracy,’ ” Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) 17 (quoting Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989)). “ ‘To be liable, 18 each participant in the conspiracy need not know the exact details of the plan, but each participant 19 must at least share the common objective of the conspiracy.’ ” Franklin, 312 F.3d at 441 (quoting 20 United Steelworkers, 865 F.2d at 1541). A plaintiff must allege facts with sufficient particularity 21 to show an agreement or a meeting of the minds to violate the plaintiff's constitutional rights. 22 Miller v. Cal. Dep’t of Soc. Servs., 355 F.3d 1172, 1177 n.3 (9th Cir. 2004) (citing Woodrum, 23 866 F.2d at 1126). The mere statement that defendants “conspired” is not sufficient to state a 24 claim. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory 25 statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 26 The Ninth Circuit requires a plaintiff alleging a conspiracy to violate civil rights to “state 27 specific facts to support the existence of the claimed conspiracy.” Olsen v. Idaho State Bd. of 28 Med., 363 F.3d 916, 929 (9th Cir. 2004) (citation and internal quotation marks omitted) 1 (discussing conspiracy claim under § 1985); Burns v. County of King, 883 F.2d 819, 821 (9th 2 Cir. 1989) (“To state a claim for conspiracy to violate one's constitutional rights under section 3 1983, the plaintiff must state specific facts to support the existence of the claimed conspiracy.” 4 (citation omitted)). 5 Plaintiff's allegations of conspiracy under § 1983 fail to state a claim because his 6 allegations are conclusory and merely speculative. Though Plaintiff alleges Defendants engaged 7 in a “campaign” of harassment and retaliation, he does not provide any specific facts that show 8 that any of the Defendants had an agreement to violate his constitutional rights. There is 9 absolutely no indication of any agreement between any of the Defendants. Therefore, Plaintiff 10 fails to state a claim for conspiracy. 11 I. Failure to Protect 12 The Eighth Amendment protects prisoners from inhumane methods of punishment and 13 from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994); Morgan 14 v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, 15 prison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, 16 sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) 17 (quotation marks and citations omitted). To establish a violation of the Eighth Amendment, the 18 prisoner must “show that the officials acted with deliberate indifference ...” Labatad v. Corrs. 19 Corp. of Amer., 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. Cty. of Washoe, 290 F.3d 20 1175, 1187 (9th Cir. 2002)). 21 Prison officials have a duty under the Eighth Amendment to protect prisoners from 22 violence at the hands of other prisoners because being violently assaulted in prison is simply not 23 part of the penalty that criminal offenders pay for their offenses against society. Farmer, 511 U.S. 24 at 833-34; Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009); Hearns v. Terhune, 413 F.3d 25 1036, 1040 (9th Cir. 2005). However, prison officials are liable under the Eighth Amendment 26 only if they demonstrate deliberate indifference to conditions posing a substantial risk of serious 27 harm to an inmate; and it is well settled that deliberate indifference occurs when an official acted 28 or failed to act despite his knowledge of a substantial risk of serious harm. Farmer, 511 U.S. at 1 834, 841; Clem, 566 F.3d at 1181; Hearns, 413 F.3d at 1040. Mere negligent failure to protect an 2 inmate from harm is not actionable under § 1983. Farmer, 511 U.S. at 835 (explaining “deliberate 3 indifference entails something more than mere negligence”). 4 Here, although Plaintiff claims that he was physically attacked by a known confidential 5 informant, he fails to demonstrate or allege that any Defendant knew of substantial risk of serious 6 harm to Plaintiff and failed to protect him. Accordingly, Plaintiff fails to state a cognizable claim. 7 IV. 8 FAILURE TO OBEY COURT ORDER AND FAILURE TO PROSECUTE 9 Here, the Court screened Plaintiff’s complaint, and on October 23, 2023, an order issued 10 providing Plaintiff with the legal standards that applied to his claims, advising him of the 11 deficiencies that needed to be corrected, and granting him leave to file an amended complaint 12 within thirty days. (ECF No. 11.) Plaintiff did not file an amended complaint or otherwise respond 13 to the Court’s October 23, 2023 order. Therefore, on December 5, 2023, the Court ordered 14 Plaintiff to show cause within fourteen (14) days why the action should not be dismissed. (ECF 15 No. 13.) Plaintiff failed to respond to the December 5, 2023 order and the time to do so has passed. 16 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 17 or with any order of the Court may be grounds for imposition by the Court of any and all sanctions 18 . . . within the inherent power of the Court.” The Court has the inherent power to control its docket 19 and may, in the exercise of that power, impose sanctions where appropriate, including dismissal 20 of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). 21 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 22 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 23 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 24 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 25 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply 26 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. United 27 States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court 28 order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of 1 prosecution and failure to comply with local rules). 2 “In determining whether to dismiss an action for lack of prosecution, the district court is 3 required to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation; 4 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 5 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 6 sanctions.’ ” Carey, 856 F.2d at 1440 (quoting Henderson, 779 F.2d at 1423). These factors guide 7 a court in deciding what to do, and are not conditions that must be met in order for a court to take 8 action. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th 9 Cir. 2006) (citation omitted). 10 In this instance, the public’s interest in expeditious resolution of the litigation and the 11 Court’s need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine (PPA) 12 Products Liability Litigation, 460 F.3d at 1226. Plaintiff was ordered to file an amended complaint 13 within thirty days of October 23, 2023 and has not done so. Plaintiff’s failure to comply with the 14 order of the Court by filing an amended complaint hinders the Court’s ability to move this action 15 towards disposition. This action can proceed no further without Plaintiff’s compliance with the 16 order and his failure to comply indicates that Plaintiff does not intend to diligently litigate this 17 action. 18 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 19 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 20 1452-53 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of dismissal. 21 The public policy in favor of deciding cases on their merits is greatly outweighed by the 22 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. In order 23 for this action to proceed, Plaintiff is required to file an amended complaint curing the deficiencies 24 in the operative pleading. Despite being ordered to do so, Plaintiff did not file an amended 25 complaint or respond to the order to show cause and this action cannot simply remain idle on the 26 Court’s docket, unprosecuted. In this instance, the fourth factor does not outweigh Plaintiff’s 27 failure to comply with the Court’s orders. 28 Finally, a court’s warning to a party that their failure to obey the court’s order will result 1 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 2 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s October 23, 2023, order 3 requiring Plaintiff to file an amended complaint expressly stated: “If Plaintiff fails to file an 4 amended complaint in compliance with this order, the Court will recommend to a district judge 5 that this action be dismissed consistent with the reasons stated in this order.” (ECF No. 11.) In 6 addition, the Court’s December 5, 2023, order to show cause specifically stated: “Plaintiff’s failure 7 to comply with this order will result in a recommendation to dismiss the action for the reasons 8 stated above.” (ECF No. 13.) Thus, Plaintiff had adequate warning that dismissal would result 9 from her noncompliance with the Court’s order. 10 V. 11 ORDER AND RECOMMENDATION 12 The Court has screened Plaintiff’s complaint and directed Plaintiff to file an amended 13 complaint within thirty days. Plaintiff has failed to comply with the Court’s order to file an 14 amended and has not responded to the Court’s order to show why the action should not be 15 dismissed. In considering the factors to determine if this action should be dismissed, the Court 16 finds that this action should be dismissed for Plaintiff’s failure to obey the October 23, 2023 and 17 December 5, 2023 orders, failure to prosecute this action, and failure to state a cognizable claim 18 for relief. 19 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed for Plaintiff’s 20 failure to comply with a court orders, failure to prosecute, and failure to state a cognizable claim 21 for relief. 22 This Findings and Recommendation is submitted to the district judge assigned to this 23 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 24 (14) days of service of this Recommendation, Plaintiff may file written objections to this findings 25 and recommendation with the Court. Such a document should be captioned “Objections to 26 Magistrate Judge’s Findings and Recommendation.” The district judge will review the magistrate 27 judge’s Findings and Recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are 28 advised that failure to file objections within the specified time may result in the waiver of rights 1 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 2 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ January 2, 2024
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