1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TEVIN LEE HARRIS, Case No. 1:19-cv-00429-JLT-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE1 13 v. FOURTEEN-DAY OBJECTION PERIOD 14 E. PARKS, (Doc. No. 41) 15 Defendant.
16 17 Before the Court is Plaintiff’s Third Amended Complaint. (Doc. No. 41). For the reasons 18 set forth below, the undersigned recommends the district court dismiss the Third Amended 19 Complaint under § 1915A for failure to state a claim. 20 BACKGROUND AND OPERATIVE PLEADING 21 Plaintiff, a state prisoner proceeding pro se, filed his initial civil rights complaint under 42 22 U.S.C. § 1983 on April 4, 2019. (Doc. No. 1). On April 16, 2020, after Plaintiff filed a First 23 Amended Complaint (“FAC”), the then-assigned magistrate judge screened the FAC, finding it 24 failed to include sufficient detail to connect any defendant to a deprivation of any constitutional 25 right. (Doc. No. 27 at 3). The Court also noted Plaintiff included several unrelated incidents in a 26 single complaint, which is not permitted. (Id.). While granting leave to amend, the Court 27 1This matter was referred to the undersigned pursuant to 28 U.S.C. §636(b)(1)(B) and Eastern District of 28 California Local Rule 302 (E.D. Cal. 2022). 1 cautioned Plaintiff against including unrelated claims in a single action. (Id.). Plaintiff filed a 2 Second Amended Complaint (“SAC”) on May 4, 2020. (Doc. No. 29). 3 The undersigned found that the SAC largely mirrored Plaintiff’s prior complaint 4 discussing numerous incidents and containing few facts and mostly legal conclusions. (Doc. No. 5 39 at 2). As a result, the Court gave Plaintiff three options (1) file a third amended complaint 6 which would supersede the SAC; (2) file a notice that he intended to stand on his current 7 complaint subject to the undersigned recommending the district court dismiss for the reasons 8 stated in the January 3, 2022 screening order; or (3) because no Defendant had been served, file a 9 notice of voluntary dismissal without prejudice under Federal Rule of Civil Procedure 41(a)(1), 10 which would preclude this action from counting as a strike under the Prison Litigation Reform 11 Act (“PLRA”).2 (Id. at 8-9). Plaintiff elected option one and filed a Third Amended Complaint 12 (“TAC”). 13 The TAC identifies only E. Parks as a named defendant in the caption. (See Doc. No. 41 14 at 1). The gravamen of the TAC concerns the force used on Plaintiff when he was extracted from 15 his cell at CDCR Corcoran on September 18, 2018. The following acts are alleged in the TAC, 16 which are presumed true at this procedural stage of the proceedings. 17 Defendant Parks, who was the administrator of the day, ordered an officer to spray 18 Plaintiff “in the face” with a chemical agent, ordered other officers to “assist, cuff Plaintiff,” 19 physically remove him from his cell and place shackles on him. (Doc. No. 41 at 4). Defendant 20 Parks also ordered a correctional officer to assist another correctional officer by holding 21 Plaintiff’s arms and shoulders while Plaintiff was on his knees. (Id.). Parks directed the use of 22 force, which Plaintiff describes as “unnecessary/excessive force.” (Id.). After he was extracted 23 from the cell, correctional officers took Plaintiff to the day room, where Parks ordered officers “to 24 take Plaintiff to the ground.” (Id. at 5). Plaintiff was “slammed” to the ground and “kneed” with 25 2 Under § 1915(g), prisoners who have repeatedly brought unsuccessful suits may be barred from bringing 26 a civil action and proceeding in forma pauperis once they have had on prior occasions three or more cases dismissed as frivolous, malicious, or for failure to state a claim. Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 27 1723 (2020); see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 2007). Regardless of whether the dismissal was with or without prejudice, a dismissal for failure to state a claim counts as a strike under 28 § 1915(g). Lomax, 140 S. Ct. at 1727. 1 the officers landing on top of Plaintiff “applying downward force with knee, hands, and twisting 2 [his] ankles.” (Id.). Either Defendant Parks or R. Savala cut off Plaintiff’s clothes with scissors 3 causing “a laceration” to Plaintiff during the process. (Id.). While naked, correctional officer 4 Madrigal slid his hand between Plaintiff’s buttocks causing unspecified “injuries and damages.” 5 (Id.). The entire incident on September 18, 2018, was witnessed and ordered by Defendant Parks 6 and Parks did not “temper the severity of [the] entire incident.” (Id.). During and prior to the 7 alleged incident on September 18, 2018, Plaintiff told Defendant Parks that he feared for his 8 safety around the correctional officers involved, including J. Scalia, Madrigal, E. Moreno, and E. 9 Diaz. Plaintiff opines that because he expressed this fear, Defendant Parks along with 10 correctional officers J. Scalia, Madrigal, E. Moreno, and E. Diaz “staged” the use of force 11 incident. (Id. at 4). Plaintiff sustained “bone pains, headaches, bruises and a laceration” and 12 seeks $90,000.00 in punitive damages. (Id. at 5). 13 The TAC also identifies R. Pleschuck, the supervising psychologist at Mule Creek State 14 Prison, as a defendant under the list of “Defendants” in the complaint form but his name does not 15 appear on the caption. (see Doc. No. 41 at 1-2). The TAC is otherwise devoid of any other 16 mention of R. Pleschuck anywhere. 17 APPLICABLE LAW 18 A. Section 1915A Screening and Rule 8 19 Because Plaintiff commenced this action while he was incarcerated, he is subject to the 20 Prison Litigation Reform Act (“PLRA”), that requires, inter alia, that the court screen a complaint 21 that seeks relief against a governmental entity, its officers, or its employees under 28 U.S.C. § 22 1915A before directing service upon any defendant. This requires the court to identify any 23 cognizable claims and dismiss any portion of the complaint that is frivolous or malicious, that 24 fails to state a claim upon which relief may be granted, or that seeks monetary relief from a 25 defendant who is immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2); see also 28 26 U.S.C. § 1915(e)(2)(b)(ii) (governing actions proceeding in forma pauperis). 27 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 28 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 1 Cir. 1984). Claims are frivolous where they are based on an indisputably meritless legal theory or 2 where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. A claim fails to state 3 a claim upon which relief may be granted if it appears that the plaintiff can prove no set of facts 4 in support of the claim that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 5 73 (1984); Palmer v. Roosevelt Lake Log Owners Ass’n, Inc., 651 F.2d 1289, 1294 (9th Cir. 6 1981). Examples of immunity that would preclude relief during screening, include, but are not 7 limited to, quasi-judicial immunity, sovereign immunity, or qualified immunity. Additionally, a 8 prisoner plaintiff may not recover monetary damages absent a showing of physical injury. See 42 9 U.S.C. § 1997e(e). In other words, to recover monetary damages, a plaintiff must allege physical 10 injury that need not be significant but must be more than de minimis, except when involving First 11 Amendment claims. Oliver v. Keller, 289 F.3d 623, 626-28 (9th Cir. 2002) (surveying other 12 circuit courts for the first time to address injury requirement for monetary damages, and agreeing 13 with the Second, Fifth, and Eleventh Circuits on PLRA’s injury requirement). 14 At the screening stage, the court accepts the factual allegations in the complaint as true, 15 Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 740 (1976), construes the complaint in the light 16 most favorable to the plaintiff and resolves all doubts in the plaintiff’s favor. Jenkins v. 17 McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 18 2003). A court “need not assume the truth of legal conclusions cast in the form of factual 19 allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n. 2 (9th Cir.1986). Nor 20 does the court accept as true conclusory allegations, unreasonable inferences, or unwarranted 21 deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Critical 22 to evaluating a constitutional claim is whether it has an arguable legal and factual basis. See 23 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. 24 The Federal Rules of Civil Procedure require only that the complaint contain “a short and 25 plain statement of the claim showing the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). 26 Nonetheless, a claim must be facially plausible to survive screening, which requires sufficient 27 factual detail to allow the court to reasonably infer that each named defendant is liable for the 28 misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Moss v. U.S. Secret Service, 1 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not 2 sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. 3 Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. Although detailed factual allegations are not 4 required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 5 statements, do not suffice,” Iqbal, 556 U.S. at 678 (citations omitted), and courts “are not required 6 to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 7 2009) (internal quotation marks and citation omitted). Thus, it is inappropriate for the court to 8 assume that the plaintiff “can prove facts that it has not alleged or that the defendants have 9 violated the ... laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., 10 Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 11 (1983). 12 If an otherwise deficient pleading could be cured by the allegation of other facts, the pro 13 se litigant is entitled to an opportunity to amend their complaint before dismissal of the action. 14 See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. Department of 15 Corr., 66 F.3d 245, 248 (9th Cir. 1995). However, it is not the role of the Court to advise a pro se 16 litigant on how to cure the defects. Such advice “would undermine district judges’ role as 17 impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 18 1131 n.13. 19 B. Section 1983 and Excessive Use of Force Under the Eighth Amendment 20 Section 1983 allows a private citizen to sue for the deprivation of a right secured by 21 federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). To 22 state a claim under § 1983, a plaintiff must show that a defendant acting under color of state law 23 caused an alleged deprivation of a right secured by federal law. See 42 U.S.C. § 1983; Soo Park 24 v. Thompson, 851 F.3d 910, 921 (9th Cir. 2017). The plaintiff can satisfy the causation 25 requirement by showing either: (1) the defendant’s “personal involvement” in the alleged 26 deprivation or (2) a “sufficient causal connection” between the defendant’s conduct as a 27 supervisor and the alleged deprivation. See King v. Cty. of Los Angeles, 885 F.3d 548, 559 (9th 28 Cir. 2018). 1 Inmates who sue prison officials for injuries sustained while in custody may do so under 2 the Eighth Amendment’s Cruel and Unusual Punishment Clause, or, if the claim is pursued by a 3 pre-trial detainee who is not convicted, under the Fourteenth Amendment’s Due Process Clause. 4 Bell v. Wolfish, 441 U.S. 520 (1979) (holding that under the Due Process Clause, a pre-trial 5 detainee may not be punished prior to conviction). The Eighth Amendment protects inmates from 6 inhumane methods of punishment and conditions of confinement. See Farmer v. Brennan, 511 7 U.S. 825 (1994); Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). To constitute cruel 8 and unusual punishment in violation of the Eighth Amendment, prison conditions must involve 9 “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). 10 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places restraints on 11 prison officials, who may not … use excessive physical force against prisoners.” Farmer v. 12 Brennan, 511 U.S. 825, 832 (1994). “[W]henever prison officials stand accused of using 13 excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is … 14 whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously 15 and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). When 16 determining whether the force was excessive, the Court looks to the “extent of injury suffered by 17 an inmate…, the need for application of force, the relationship between that need and the amount 18 of force used, the threat ‘reasonably perceived by the responsible officials,’ and ‘any efforts made 19 to temper the severity of a forceful response.’” Id. at 7 (quoting Whitley v. Albers, 475 U.S. 312, 20 321 (1986)). While de minimis uses of physical force generally do not implicate the Eighth 21 Amendment, significant injury need not be evident in the context of an excessive force claim, 22 because “[w]hen prison officials maliciously and sadistically use force to cause harm, 23 contemporary standards of decency always are violated.” Hudson, 503 U.S. at 9. 24 C. Supervisor Liability 25 Liability under section 1983 arises only upon a showing of personal participation by the 26 defendant. “There is no respondeat superior liability under section 1983.” Taylor v. List, 880 27 F.2d 1040, 1045 (9th Cir.1989) (citations omitted). A supervisor is only liable for constitutional 28 violations of his subordinates if the supervisor participated in or directed the violations or knew of 1 the violations and failed to act to prevent them. Id., see also Starr v. Baca, 652 F.3d 1202, 1206– 2 07 (9th Cir. 2011). 3 ANALYSIS 4 A. Claim of Excessive Force on September 18, 2018 5 Plaintiff describes certain conduct (e.g. that he was sprayed with a chemical agent, 6 slammed to the ground, kneed, and had his ankles twisted) when he was forcibly extracted from 7 his cell that continued into the day room; however, Plaintiff fails to allege any surrounding facts 8 suggesting that the force was not applied in a good faith effort to maintain or restore discipline. 9 (See Doc. 41 at 4-5). Plaintiff’s description of the force as “unnecessary/excessive” is a legal 10 conclusion that the court “need not assume the truth of.” United States ex rel. Chunie v. 11 Ringrose, 788 F.2d at 643. Critical here is that the TAC is silent as to what precipitated the need 12 to forcibly removed Plaintiff from his cell. (See id.). The TAC indicates only that the use of 13 force occurred during a cell extraction, but provides no facts as to what, if anything, prompted the 14 cell extraction. No factual background of events that led up to the cell extraction are provided. 15 There are no facts from which the Court can reasonably construe that there was no legitimate or 16 prison management need for the force or that the force used was out of proportion to that need. 17 Plaintiff does not allege that he was compliant nor that he was not combative during the 18 extraction. (See id.). And while a correctional officer may not use excessive force, officers may 19 use some measure of force if an inmate refuses a valid order. Whitley, 475 U.S. at 320; LeMarie 20 v. Maass, 12 F.3d 1444, 1451 (9th Cir. 1993). The appropriateness of the use of force is 21 determined by the facts and circumstances of each particular case. Michenfleder v. Summer, 860 22 F.2d 328, 335 (9th Cir. 1988). Here the TAC is completely silent as to any facts or circumstances 23 attendant to the use of force event. A conclusory allegation of force as “unnecessary/excessive” 24 that is unsupported by any facts is insufficient to state a claim under section 1983. Although pro 25 se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory 26 and vague allegations are not adequate to support a cause of action. Ivey v. Bd. of Regents, 673 27 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not 28 supply essential elements of the claim that were not initially pled. Id. This Court cannot read 1 into the FAC unpled facts. As set forth above, Fed. R. Civ. P. 8 requires a complaint contain 2 sufficient factual detail to allow the Court to reasonably infer that Defendant Parks is liable for 3 not just directing the use of force but directing the use of excessive force. Where Plaintiff has 4 failed to plead such facts, this Court cannot reasonably infer that Plaintiff can prove such 5 facts. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. at 6 526. Based on requisite pleading standards and governing precedent, the TAC fails to state a 7 cognizable Eighth Amendment claim for excessive use of force. 8 Additional support that the force used was not excessive lies in the de minimis injuries 9 suffered by Plaintiff. Other than stating he received a laceration when his clothing was cut off 10 with a pair of scissors and he suffered unspecified bone pains and bruises as a result of the 11 incident, Plaintiff does not describe or allege the types of injuries to substantiate a claim that 12 defendant Parks directed officers to employ either malicious or sadistic use of force. (See id.). 13 As the Supreme Court has emphasized, “not ... every malevolent touch by a prison guard gives 14 rise to a federal cause of action.” Hudson, 503 U.S. at 9. Thus, “[n]ot every push or shove, even 15 if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's 16 constitutional rights.” Meredith v. State of Ariz., 523 F.2d 481, 483 (9th Cir. 1975) (citation 17 omitted), abrogated on other grounds as recognized in Sinaloa Lake Owners Ass'n v. City of Simi 18 Valley, 882 F.2d 1398, 1408 n.10 (9th Cir. 1989). see also Hudson, 503 U.S. at 7 (noting the 19 “absence of serious injury is ... relevant to the Eighth Amendment inquiry, but does not end it.”). 20 And while certain de minimis force may be sufficient in limited circumstances, there are not facts 21 here to infer that the force used was gratuitous or without reason. Wilkins v. Gaddy, 130 S. Ct. 22 1175, 1178-79 (2010) (“An inmate who is gratuitously beaten by guards does not lose his ability 23 to pursue an excessive force claim merely because he has the good fortune to escape without 24 serious injury.”). Given the de minimis injury and the absence of any factual allegations 25 concerning the use of force, the Court finds the TAC fails to plausibly states an Eighth 26 Amendment claim. 27 B. “Sexual Assault” on September 18, 2018 28 Plaintiff claims that he was “sexually assaulted” when correctional officer Madrigal “slid 1 his hand between [Plaintiff’s] butt and, [sic] Plaintiff suffered injuries and damages.” (Doc. No. 2 41 at 5). Notably, correctional officer Madrigal is not named as a defendant. Nonetheless, even if 3 the Court liberally construes the TAC as alleging that the action was taken at the direction of 4 Defendant Parks, the TAC fails to allege a viable claim. 5 To state a cognizable sexual assault claim, a plaintiff must plead facts indicating that “a 6 prison staff member, acting under color of law and without legitimate penological justification, 7 touched [him] in a sexual manner or otherwise engaged in sexual conduct for the staff member’s 8 own sexual gratification, or for the purpose of humiliating, degrading or demeaning the prisoner.” 9 Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020). When evaluating a prisoner’s sexual 10 assault claim against a corrections officer, courts should consider “whether ‘the officials act[ed] 11 with a sufficiently culpable state of mind’ and if the alleged wrongdoing was objectively ‘harmful 12 enough’ to establish a constitutional violation.” Johnson v. Frauenheim, 2021 WL 5236498, *11 13 (E.D. Cal. Nov. 10, 2021) (findings and recommendations adopted by Johnson v. Frauenheim, 14 2021 WL 5982293 (E.D. Cal. Dec. 17, 2021)) (quoting Farmer v. Brennan, 511 U.S. 825, 834 15 (1994)). 16 Again, the TAC is devoid of any facts to support a claim of sexual assault other than 17 Plaintiff was touched “between his butt.” Plaintiff offers no facts as to the length of the touching, 18 the manner of the touching, or any other facts to indicate that he was touched in a sexual manner 19 that exceeded the scope of actions required by the correctional officer. Cf. Johnson, 2021 WL 20 5236498, * 11 (finding that plaintiff did not establish a sexual assault claim where he failed to 21 allege that any touching to his genitalia was anything more than brief); Berryhill v. Schriro, 137 22 F.3d 1073 (8th Cir. 1998) (finding that plaintiff did not establish a sexual assault claim when 23 there were two brief touches to plaintiff’s buttocks which were not accompanied by any sexual 24 comments or banter). Finally, the TAC contains no facts which indicate the correctional officer 25 touched Plaintiff out of the correctional officer’s own sexual gratification or for the purposes of 26 humiliating, degrading or demeaning Plaintiff. Instead, the act complained of occurred after the 27 cell extraction. Consequently, Plaintiff has not stated a cognizable claim of sexual assault. 28 //// 1 C. “Battery” on September 18, 2018 2 Plaintiff alleges that either Defendant Parks or R. Zavala cut off his clothes during the 3 incident on September 18, 2018, which resulted in Plaintiff receiving a “laceration.” (Doc. No. 4 41 at 5). R. Zavala is not named as a defendant. Construing the allegations as against Defendant 5 Parks, or that the actions were done at his direction, the claim nonetheless fails. 6 Battery is a state law claim that does not create liability under section 1983, which covers 7 only violations of federal law. Moreover, accidental uses of force do not support a claim for 8 excessive force. See Kingsley v. Hendrickson, 576 U.S. 389, 396 (2015). To the extent the TAC 9 attempts to allege an excessive force claim stemming from the laceration, it contains no facts 10 describing where Plaintiff was lacerated, any details about the laceration (length, depth, did it 11 require stitches), and is devoid of facts to suggest that Defendant Parks directed any officer to 12 deliberately cut Plaintiff. Therefore, the TAC fails to state an excessive force claim stemming 13 from the laceration. Because Plaintiff has not stated a cognizable federal claim, the undersigned 14 declines to consider whether Plaintiff stated a pendent state law battery claim. See 28 U.S.C. §§ 15 1367(a), (c)(3). 16 D. Conspiracy That September 18, 2018, Incident was “Staged” 17 Liberally construing the TAC, Plaintiff claims that Defendant Parks engaged in a 18 conspiracy with Sgt B. Hackworth, corrections officer J. Scalia, E. Diaz, and corrections officer 19 A. Madrigal to stage the September 18, 2018, incident. (Doc. No. 41 at 3). Plaintiff suggests the 20 incident was staged so Defendant Parks could act upon Plaintiff’s fear of his safety. (Id.). 21 To establish a conspiracy to violate one’s rights under § 1983, a plaintiff must plead facts 22 supporting the “(1) the existence of an express or implied agreement among the defendant 23 officers to deprive him of his constitutional rights, and (2) an actual deprivation of those rights 24 resulting from that agreement.” See Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010); Franklin 25 v. Fox, 312 F.3d 423, 441 (9th Cir. 2002). “To be liable, each participant in the conspiracy need 26 not know the exact details of the plan, but each participant must at least share the common 27 objectives of the conspiracy.” Id; see also Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 28 1283, 1301 (9th Cir. 1999) (“For example, a showing that the alleged conspirators have 1 committed acts that are unlikely to have been undertaken without an agreement may allow a jury 2 to infer the existence of a conspiracy.”) (internal quotations omitted). To maintain a § 1983 3 conspiracy claim, a plaintiff must allege that an actual deprivation of his constitutional rights 4 resulted from the alleged conspiracy. See Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006). 5 As noted above, the undersigned does not find the TAC adequately alleges an Eighth 6 Amendment claim. Thus, by implication, the TAC does not allege a conspiracy to violate his 7 rights. Further, the TAC does not allege any facts to support a conspiracy claim but merely 8 claims that the incident on September 18, 2018 was “staged” in order to act upon Plaintiff’s fear 9 of Defendant Parks and other correctional officers. (Doc. No. 41 at 3). While Plaintiff states he 10 told Defendant Parks that he feared for his safety around correction officers J. Scalia, Madrigal, 11 E. Moreno, and E. Diaz, he does not indicate when he told Defendant Parks. (Id.) (emphasis 12 added). Plaintiff does not express any facts that would suggest there was an expressed or implied 13 agreement between Defendant Parks and Sgt B. Hackworth, corrections officer J. Scalia, E. Diaz, 14 and corrections officer A. Madrigal to deprive Plaintiff of his rights under § 1983. Furthermore, 15 Plaintiff does not allege any facts that would indicate Defendant Parks and Sgt B. Hackworth, 16 corrections officer J. Scalia, E. Diaz, and corrections officer A. Madrigal shared a common 17 objective in the alleged conspiracy or that the aforementioned individuals had a “meeting of the 18 minds.” As a result, the TAC fails to state a cognizable claim of conspiracy. 19 D. Claim Against R. Pleschuck 20 The TAC is devoid of any facts about a claim against Defendant Pleschuck. (See 21 generally Doc. No. 41). The only time Defendant Pleschuck appears in the TAC is on page 2 22 when Plaintiff lists the defendants he is suing in his TAC. (Doc. No. 41 at 2). As a result, 23 because there are no allegations pled against Defendant Pleschuck, the TAC fails to state any 24 claim, let alone a cognizable § 1983 claim, against Defendant Pleschuck. 25 CONCLUSION AND RECOMMENDATION 26 Plaintiff has had the opportunity on two occasions to cure the deficiencies in his prior 27 complaints. (See Doc. Nos. 27, 39). In each of these orders, the Court instructed Plaintiff on the 28 applicable law and pleading requirements. In fact in its January 3, 2022 second screening order, 1 | the undersigned specifically addressed the fact that the SAC failed to “include facts suggesting 2 | that the force was not applied in a good faith effort to maintain or restore discipline.” (Doc. No. 3 | 39 at7). Despite affording Plaintiff an opportunity to correct the deficiencies, the TAC fails to 4 | adequately state any plausible § 1983 claim. Thus, the undersigned recommends the district court 5 | dismiss the TAC without further leave to amend. McKinney v. Baca, 250 F. App'x 781 (9th Cir. 6 | 2007) citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.1992) (noting discretion to deny 7 | leave to amend is particularly broad where court has afforded plaintiff one or more opportunities 8 | to amend his complaint). 9 Accordingly, it is RECOMMENDED: 10 The TAC be dismissed under § 1915A for failure to state a claim and the action be 11 | dismissed. 12 NOTICE TO PARTIES 13 These findings and recommendations will be submitted to the United States district judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 15 || days after being served with these findings and recommendations, a party may file written 16 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 17 || Findings and Recommendations.” Parties are advised that failure to file objections within the 18 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 19 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 | Dated: _ June 10, 2022 Mihaw. Wh. foareh fackte 22 HELENA M. BARCH-KUCHTA 33 UNITED STATES MAGISTRATE JUDGE
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