(PC) Johnson v. Frauenheim

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 11 LACEDRIC WILLIAM JOHNSON, ) Case No.: 1:18-cv-01477-AWI-BAM (PC) ) 12 Plaintiff, ) FINDINGS AND RECOMMENDATIONS ) REGARDING DISMISSAL OF CERTAIN 13 v. ) CLAIMS AND DEFENDANTS

) 14 SCOTT FRAUENHEIM, et al., ) (ECF Nos. 47) 15 Defendants. ) ) FOURTEEN (14) DAY DEADLINE 16 ) ) 17 )

18 Plaintiff LaCedric William Johnson (“Plaintiff”) is a state prisoner proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The Court thoroughly set forth 20 the relevant procedural background in the Court’s Findings and Recommendations Granting in Part 21 and Denying in Part Plaintiff's Motion to Amend and Dismissing Certain Defendants. (ECF No. 45.) 22 These Findings and Recommendations were adopted in full by the District Judge n September 27, 23 2021. (ECF No. 46.) The claims against Defendants M. Ramirez and D. Erickson under 42 24 U.S.C. § 1983 were dismissed, and Plaintiff was granted leave to amend, except as to Defendants M. 25 Ramirez and D. Erickson. Plaintiff’s first amended complaint, filed on September 27, 2021, is 26 currently before the Court for screening. (ECF No. 47.) 27 /// 28 1 I. Screening Requirement and Standard 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 4 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 5 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief 6 from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); see also 28 U.S.C. § 7 1915(e)(2)(B). 8 A complaint must contain “a short and plain statement of the claim showing that the pleader is 9 entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 10 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 11 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 12 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally 13 participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 14 2002). 15 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 16 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 17 Cir. 2012). To survive screening, Plaintiff’s claims must be facially plausible, which requires 18 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for 19 the misconduct alleged. Iqbal, 556 U.S. at 678–79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th 20 Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts 21 that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 22 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 23 II. Summary of Plaintiff’s Allegations 24 Plaintiff is currently housed at San Quentin State Prison. Plaintiff alleges that the events at 25 issue took place at Pleasant Valley State Prison (“PVSP”). Plaintiff names the following defendants: 26 (1) Correctional Sergeant J. Benavides; (2) Correctional Officer J. Bejinez; (3) Correctional Officer S. 27 Deshazo; (4) Correctional Officer D. Erickson; (5) Correctional Officer S. Espinoza; (6) Correctional 28 Officer J. Hill; (7) Registered Nurse Ryan Hoggard; (8) Correctional Officer C. Kennedy; (9) 1 Correctional Officer W. Leon; (10) Correctional Officer S. Lopez; (11) Correctional Officer G. Luna; 2 (12) Correctional Officer A. Salas; (13) Correctional Officer M. Santos; (14) Correctional Officer E. 3 Trinidad; (15) Correctional Officer R. Newton; and (16) M. Ramirez, Correctional Officer.1 4 Plaintiff’s first amended complaint (ECF No. 47) alleges as follows. 5 Custody staff at PVSP have a longstanding practice of using pat-down and unclothed body 6 searches to initiate assaults against targeted inmates as a means of intimidation, harassment, and 7 retaliation resulting in false 115 Rules Violation Reports alleging “battery of peace officer” and 8 disciplinary sanctions, i.e., administrative segregation placement, Security Housing Unit term, 9 increased classification score, forfeiture of good-time/worktime credits, possible transfer and referral 10 to the District Attorney for prosecution. At the time of this incident, Plaintiff fit the criteria of a 11 “targeted inmate” because he was actively pursuing a conversion action in the Superior Court of 12 California, County of Fresno against two PVSP prison guards who intentionally discarded legal files 13 to five active cases, religious property, and personal property. 14 On January 29, 2014, at 0930 hours, Facility Bravo (Facility B) yard Defendant Benavides was 15 conducting a controlled yard release with random pat-down searches being conducted by 16 approximately ten correctional officers. During the Building 1 yard release, Plaintiff forgot his 17 identification card in his cell. Since inmates must carry their identification card on their person, 18 Plaintiff summoned Defendant Newton, the Building 1 Control Tower Officer, for an unlock, 19 explaining that he had forgotten his identification card in his cell and requesting an unlock to gain 20 access. Defendant Newton denied Plaintiff’s request. 21 Defendant Santos, the Building 1 First Tier Floor Officer, ordered Plaintiff to “strip-out” in the 22 lower B section shower. Plaintiff took off all of his clothes except for his boxers, gave them to 23 Defendant Santos and Defendant Leon, the Second Tier Officer, along with his legal folder, and stood 24 waiting until the search of his clothing and legal folder was completed. Defendant Santos approached 25

26 1 As stated above, the claims against Defendants D. Erickson (defendant (4)) and M. Ramirez (Defendant (16)) under 42 U.S.C. § 1983 were dismissed without leave to amend. (ECF No. 46.) 27 While the first amended complaint names both Defendants M. Ramirez and D. Erickson, the claims cannot go forward. The Court will not include any summary of allegations against Defendants D. 28 Erickson and M. Ramirez in this screening order. 1 the shower and told Plaintiff, “Give me your boxers,” just as Defendant Luna and Defendant Espinoza, 2 a female officer, entered the building and looked towards the shower and the ongoing search. (ECF 3 No. 47, at 6.) Plaintiff stated, “One moment out of respect for the women, I’m Muslim.” (Id.) 4 Defendant Santos then opened the shower gate and barked “Cuff Up! Cuff Up! Get Down!” (Id.) 5 When Plaintiff asked what he had done, Defendant Santos emptied a canister of O.C. pepper spray 6 directly in Plaintiff’s face, blinding him. Protocol procedures after use of pepper spray is to 7 decontaminate inmates immediately. 8 Plaintiff stumbled blindly to the back of the shower, turned the water on, and rinsed his eyes, 9 with his back to Defendant Santos. Defendant Santos then entered the shower and began striking 10 Plaintiff across the knee of his left leg with rapid, hard successive blows with his MEB expandable 11 baton, which caused Plaintiff’s surgically repaired knee to weaken, become painful, and a wound on 12 the knee to open up and bleed. When Plaintiff turned around, Defendant Santos left the shower. 13 At that point, Defendant Leon emptied a canister of O.C. pepper spray into Plaintiff’s face, 14 blinding Plaintiff and causing Plaintiff to inhale mace through his nose, choking Plaintiff, as 15 Defendant Leon yelled for Plaintiff to “Get the fuck down!” (Id. At 7.) Plaintiff turned, placed his 16 head under the water to rinse his eyes, due to the burning and blindness, and attempted to comply with 17 the order to prone out on the shower, but pain from the injured knee and leg made compliance 18 difficult. Defendant Santos entered the shower for a second time and began beating Plaintiff across 19 the arm, wrist, elbow, and body with his MEB baton. When Plaintiff stood up and raised his arms to 20 protect himself from blows to his head, Defendant Santos ran out of the shower again. 21 As Plaintiff was being beaten by Defendant Santos, Defendant Espinoza made a call over her 22 radio of a disturbance in Building 1. All inmates were ordered down. Defendant Benavides and 23 approximately 10 other officers who were outside of the building entered the building, waving batons 24 and shaking up their canisters of O.C. pepper spray. The officers formed a skirmish line in front of the 25 shower, yelling “Get the fuck down!” (Id. at 7.) Plaintiff’s new allegations state that these guards 26 include J. Bejines, J. Hill, C. Kennedy, S. Lopez, A. Salas, E. Trinidad, M. Santos, W. Leon, S. 27 Espinoza and C. Luna, R. Newton in the building tower armed with the block gun or mini 14 rifle. 28 The guards could have locked the shower and let Plaintiff decontaminate. They failed to do so. 1 S. Espinoza, G. Luna, W. Leon and R. Newton witnessed M. Santos beating Plaintiff in an 2 unprovided attack and failed to intervene. 3 As the 10 officers stood in a skirmish line in front of the shower, Defendant Santos then 4 sprayed Plaintiff in the face with another canister of O.C. pepper spray. Plaintiff added allegations that 5 J. Benavides, J. Bejinez, S. Espinoza, J. Hill, C. Kennedy, W. Leon, S. Lopez, G. Luna, A. Salas and 6 E. Trinidad all emptied their cannisters of pepper spray on Plaintiff causing him to choke gage, 7 hyperventilate and blinding and burning him. Further, as they yelled “Get down!” (Id. at 8.) As 8 Plaintiff attempted to prone out in a pool of pepper spray, Defendant Santos entered the shower for a 9 third time and began beating Plaintiff across the arms and legs with his MEB baton. Defendant Santos 10 then grabbed Plaintiff by the ankle and dragged Plaintiff out of the shower and onto the dayroom floor. 11 J. Benavides, J. Bejinez, S. Espinoza, J. Hill, C. Kennedy, W. Leon, S. Lopez, G. Luna, A. 12 Salas and E. Trinidad had a duty to intervene in the assault of Plaintiff who was defenseless, 13 unclothed, blindding choking gagging. (Id. at 8.) 14 Defendant Hill and Defendant Salas then jumped on Plaintiff’s back, causing pain, and both 15 began punching Plaintiff in the face and head. Plaintiff’s head bounced off of the concrete floor 16 approximately three times. Out of fear, Plaintiff attempted to protect his left wrist, which was swollen, 17 throbbing, and disfigured, by placing it under his torso. Defendant Benavides grabbed his right hand 18 and wrist and held it, preventing Plaintiff from protecting himself from punched by J. Hill and A. 19 Salas. Defendants Benavides, Luna, Lopez, and Salas were punching and pulling on Plaintiff’s wrist, 20 while yelling, “Stop resisting!” (Id. at 9.) One of the guards kicked Plaintiff in the genitalia. 21 Plaintiff began twisting his hips, making his genitalia a moving target, to avoid further contact. 22 J. Bejinez, C. Kennedy, S. Lopez, and M Santos kicked Plaintiff in the legs and groin area. 23 Other officers began kicking and stomping Plaintiff’s legs and torso until Plaintiff became 24 weak. Defendant Kennedy continued kicking Plaintiff. Defendant Hill stated: “He’s screaming like a 25 bitch.” (Id.) Plaintiff’s wrists were then cuffed behind his back, extremely tight. Defendant J. 26 Benavides grabbed Plaintiff’s ankles and dismissed Defendant Ramirez placed flex cuffs on Plaintiff’s 27 ankles, tightly, which dug into Plaintiff’s flesh, causing bleeding and pain. 28 1 Medical staff were summoned. Defendants R. Hoggard brought a gurney. Defendants 2 Benavides, and Santos, lifted Plaintiff, placed Plaintiff in a stokes litter, and then placed him on the 3 gurney. Defendant Salas ripped off Plaintiff’s boxer shorts off and placed the pepper-spray soaked 4 underwear over Plaintiff’s head, burning Plaintiff’s face. Plaintiff was naked in the presence of 5 females Defendants Hansen, Liebold, Sharp, and Espinoza, and Jane doe counselor2 all women. 6 Nothing was placed over Plaintiff to cover his genitalia. 7 Defendants Bejinez and Trinidad then wheeled Plaintiff, naked, on the gurney across the yard 8 in the presence of the inmate population, custody staff of both genders, and support services staff. (Id. 9 at 10.) Plaintiff was taken to the Facility B medical clinic, where he arrived at approximately 0945 10 hours. Defendant Deshazo was the assigned medical triage coverage officer. Defendants Bejinez and 11 Trinidad lifted Plaintiff off of the gurney in the stokes litter and slammed Plaintiff to the ground in the 12 holding tank. The already tight handcuffs that were under Plaintiff’s body clicked even tighter, which 13 caused the handcuffs to dig deeper into Plaintiff’s injured wrist, flesh, and bone, causing excruciating 14 pain. 15 Plaintiff begged Defendant Deshazo to loosen, or remove, the cuffs and to summon medical 16 staff for treatment. However, Defendant Deshazo stated “No. And shut up!” while Plaintiff was 17 screaming in pain, hyperventilating, coughing, and sweating. Defendant Deshazo placed a spit mask 18 hood over Plaintiff’s head. Plaintiff was choking, gagging for air, hyperventilating, sweating, causing 19 pain, anguish and anxiety. Deshazo left Plaintiff hog tied with the spit hood over his head for about an 20 hour. 21 Defendant Deshazo is not authorized to put the spit hood on Plaintiff while suffering from 22 pepper spray, according to Department Operations Manual (“DOM”) 51020.16. Plaintiff’s lungs are 23 damaged by Valley Fever spores. Plaintiff was showing apparent signs of respiratory distress and 24 weakness from the beating. Plaintiff was choking, gagging for air, hyperventilating, sweating, phlegm 25 and mucus was sticking to the spit hood mask, which clogged up the mask and caused Plaintiff to 26 suffocate and fight for air. Plaintiff was in and out of consciousness. Defendant Deshazo disregarded 27

28 2 Plaintiff has not alleged any Jane Does as defendants. 1 Plaintiff’s pleas for help while the hand and flex ankle cuffs were cutting into Plaintiff’s flesh, the spit 2 hood was restricting the oxygen to Plaintiff’s lungs and brain, Plaintiff was burning all over from 3 excessive pepper spray, Plaintiff’s head was throbbing, and Plaintiff was bleeding and swelling. 4 Defendant Deshazo just ignored Plaintiff, even though he was within 10 feet of Plaintiff. Defendant 5 Deshazo opened the door and let another inmate in, Homick, who witnessed Plaintiff, naked and 6 suffering on the floor. 7 Yard recall was ordered to lock up for a yard recall over the PA system. Another inmate, Terry 8 McGhee, who witnessed Plaintiff being wheeled across the yard naked, also witnessed the responding 9 officers exit Building 1 high-fiving and fist bumping after the beating. 10 At approximately 1045 hours, Defendants Bejinez and Trinidad had a conversation with 11 Defendant Benavides at the Facility B medical entrance. Then, Defendants Bejinez and Trinidad 12 grabbed a gurney, placed Plaintiff on the gurney, and wheeled him, still naked, across the yard to the 13 gym and they took off the spit mask. 14 Defendants Bejinez and Trinidad removed the spit mask. After one of the Defendants stated 15 that the showers were not working, they left Plaintiff lying in the stokes litter on the gurney suffering 16 and sat down and held a conversation among themselves. Defendant Benavides entered the gym told 17 Defendants Bejinez and Trinidad to remove Plaintiff’s cuffs, take Plaintiff out of the stokes litter, and 18 place Plaintiff on the bench. Plaintiff could not hold himself up and was slumped over because he was 19 weak and could not support himself with his injured arm, wrist, knees, or leg, so he slumped over. 20 Defendants Bejinez and Trinidad then just sat back down and resumed their personal conversation. 21 At that point, Gomez, who is not a defendant, entered the gym, assessed the situation, filled a 22 bucket with water from a sink, and poured it over Plaintiff’s head. After Gomez poured a second 23 bucket of water over Plaintiff, Plaintiff requested that Gomez pour a third bucket of water over him 24 because his penis was burning. Plaintiff informed Gomez that the burning was unbearable. However, 25 Gomez stated that: “You’ll be better off without water, water agitates the chemical.” Plaintiff’s eyes 26 were never rinsed. He peeked only. 27 Defendant Hoggard then entered the gym, stopped approximately ten feet away from Plaintiff, 28 wrote something down on a piece of paper, and exited the gym. Plaintiff assumed that Defendant 1 Hoggard was going to return to provide medical care, but Defendant Hoggard did not. Plaintiff alleges 2 Hoggard had a duty to assess Johnson and document his injuries and refer him to a physician. Para 3 40. Instead, as soon as Defendant Hoggard exited the gym. Defendant Benavides entered the gym, 4 told Defendants Bejinez and Trinidad to prepare Plaintiff for transport to Delta-4 ad-seg 5 (administrative segregation) unit, and gave Plaintiff a pair of boxer shorts. Plaintiff was unable to put 6 the boxer shorts on without assistance and Benavides told them to get a wheelchair. 7 Defendant Hoggard’s CDCR 7219 Injury/Assessment Medical Report of Injuries only 8 indicated that Plaintiff had a scratch/abrasion on his left knee and O.C. pepper spray on his torso. The 9 report diminished actual injuries. 10 The captain or designed staff had a duty to conduct an excessive force video deposition 11 investigation based on facts known to Benavides. Plaintiff asserts that this orchestrated plan of action 12 between Defendants Benavides and Hoggard to minimize Plaintiff’s documented injuries was done in 13 order to isolate Plaintiff in ad-seg and to prevent Plaintiff from getting medical care, which would 14 have opened up a serious investigation into excessive force and the completion of an excess force 15 video deposition as required by prison regulations. Pursuant to the Department Operations Manual 16 51020.18.2, a video deposition should have been taken. 17 At approximately 1200 hours, Defendants Bejinez and Trinidad had to carry Plaintiff into the 18 Delta 4 segregation unit by putting their shoulders under his arms in order to drag Plaintiff. (Id. at p. 19 13.) 20 Plaintiff was found unresponsive in Cell #127 at 1600 hours by a Delta 4-unit officer. Three 21 officers entered the cell, and placed him on medical gurney manned by D. Hall, LVN. Delta 4-unit 22 medical staff, Licensed Vocational Nurse D. Hall was summoned. After Nurse Hall ascertained that 23 Plaintiff’s injuries were severe and his vitals were high, Nurse Hall made arrangements for Plaintiff to 24 be taken to PVSP Correctional Treatment Center (“CTC”). Plaintiff’s visible signs of injury were 25 assessed and documents by Registered Nurse K. Bradley on a CDCR 7219 Injury/Assessment Report. 26 Plaintiff was evaluated by Dr. Ola, given an epidural shot for pain management, and then sent to 27 Community Regional Medical Center in Fresno. Plaintiff was admitted to the hospital, monitored 28 1 overnight the night, and then released on January 30, 2014. Plaintiff believes he got an MRI and a cat 2 scan for injuries. His eyes continued to burn and drained until January 31, 2014. 3 On January 30, 2014, Plaintiff was housed at PVSP CTC for medical evaluation and 4 monitoring. The physical signs of trauma to Plaintiff’s head and body were more prominent. 5 Plaintiff’s eyes were black and blue, hemorrhaged orbital of both eyes, his left wrist was deformed and 6 swollen, he had a loss of feeling in his left hand, he had a numb and tingling sensation in his left 7 extremities, a bruised left bicep and rib, his left knee was swollen with two lacerations, his left shin 8 was swollen, he had a right inside ankle gash, an intense headache and pain all over his body, and his 9 eyes and body were burning from pepper spray. 10 On January 31, 2014, at 1000 hours, Plaintiff was allowed to take a shower. After about 20 11 minutes, the effects of the pepper spray fully wore off. 12 On February 3, 2014, at 1000 hours, a doctor inquired about Plaintiff’s pain level based on 13 Plaintiff’s apparent head and eye injuries. Plaintiff told the doctor that he felt dizzy, severe headache, 14 and blurred vision. The doctor prescribed Plaintiff ibuprofen, acetaminophen, and made Plaintiff a 15 specialty clinic appointment to see optometry. 16 On February 18, 2014, Plaintiff was seen by the mental health department by Dr. Kuo and 17 prescribed Citalopram for severe depression and anxiety and weekly therapy sessions due to the 18 trauma Plaintiff suffered. Also, on February 18, 2014,3 Plaintiff was taken to the specialty clinic for 19 an optometry examination. It was ascertained that Plaintiff suffered eye damage from the assault and 20 a bi-focal was added to his prescription. Plaintiff also suffered a stigmatism. 21 On March 11, 2014, Sergeant Clark, along with Correctional Officer Ruggles, conducted an 22 excessive force video deposition in Delta 4 unit at 1925 hours, and ran out of video tape. On March 23 18, 2014, Sergeant Clark and Correctional Officer Ruggles conducted a second excessive force video 24 deposition. This was in violation of DOM 51-20.18.2. 25 26

27 3 Plaintiff’s complaint states the optometry examination occurred on January 18, 2014. (Doc.47, ¶55.) The Court assumed this January dates is an error, as the incident at issued occurred on January 29, 28 2014, and Plaintiff meant the optometry examination occurred on February 18, 2014. 1 On April 23, 2014, Plaintiff was prescribed Lisinopril for stress related high blood pressure, 2 hypertension from the brutal assault. 3 On September 18, 2014, medical staff issued Plaintiff a second pair of eye-wear to conclude 4 the correction of the damage to his eyes caused by the January 29, 2014 assault. 5 In September 2015, Plaintiff needed an operation to remove a lipoma tumor lesion in his right 6 lateral flank, where Defendant Kennedy and other officers kicked Plaintiff in the rib area with military 7 style boots. 8 On September 22, 2015, Plaintiff suffered temporary blindness in his right eye. He was 9 diagnosed with ocular migraines as a result of defendants beating Plaintiff in the head. His right eye 10 goes blind for 5 – 15 minutes as result of the head injury by Hill and Salas. 11 Plaintiff alleges he has exhausted his government claims of deliberate indifference claims and 12 excessive forces claims. 13 Plaintiff asserts that “Defendants” are being sued in their individual capacity and their official 14 capacity. 15 In claim 1, Plaintiff alleges violation of the First Amendment Religion clause for his Islamic 16 believe in one’s modesty and for violation of Title 15, Art. 2, §3287(b)-Body Inspections. In claim 2, 17 Plaintiff alleges violation of The Fourth Amendment right against unreasonable search and seizure for 18 abusive search and sexual assault, when Defendant Salas snatched Plaintiff’s boxer shorts off his 19 body, strangling Plaintiff’s genitalia and ripping into his anus. In claim 3, Plaintiff alleges violation of 20 Eighth Amendment for excessive force, tight cuffs, abusive search and pepper spray. In claim 4, 21 Plaintiff alleges violation of the Eighth Amendment for denial, delay of medical care against 22 Benavides, J. Bejinez, Deshazo Trinidad, Hoggard. (ECF No. 47. at 24.) 23 Plaintiff seeks $5,000,000.00 in compensatory damages for each defendant in each cause of 24 action, $5,000,000.00 in punitive damages for each cause of action, declaratory relief, costs of suit, 25 and/or attorney’s fees. 26 /// 27 /// 28 /// 1 III. Discussion 2 A. Official Capacity 3 Plaintiff asserts that he is suing each of the named Defendants in both their individual and 4 official capacities. Plaintiff seeks monetary damages and declaratory relief against each of the named 5 Defendants. 6 “Suits against state officials in their official capacity … should be treated as suits against the 7 State.” Hafer v. Melo, 502 U.S. 21, 25 (1991); Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1111 (9th 8 Cir. 2010) (treating prisoner’s suit against state officials in their official capacities as a suit against the 9 state of California). An official capacity suit “represent[s] only another way of pleading an action 10 against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) 11 (citation omitted). Such a suit “is not a suit against the official personally, for the real party in interest 12 is the entity.” Id. at 166. 13 “The Eleventh Amendment bars suits for money damages in federal court against a state, its 14 agencies, and state officials acting in their official capacities.” Aholelei v. Dep’t of Public Safety, 488 15 F.3d 1144, 1147 (9th Cir. 2007). Therefore, Plaintiff’s claim for monetary damages against all of the 16 named Defendants in their official capacity is barred by the Eleventh Amendment. 17 Further, while the Eleventh Amendment does not bar claims for prospective injunctive relief 18 against a state official who is sued in their official capacity, Plaintiff does not seek any prospective 19 injunctive relief against any named Defendant in his complaint. Will v. Michigan Dep’t of State 20 Police, 491 U.S. 58, 92 (1989). Additionally, even if Plaintiff were seeking prospective injunctive 21 relief, Plaintiff’s injunctive relief claim would be moot because Plaintiff has been transferred from 22 PVSP and he has not demonstrated that there is a reasonable expectation that he will be transferred 23 back to PVSP. Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam); see also Andrews 24 v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007). 25 Accordingly, Plaintiff has failed to state a cognizable official capacity claim against any named 26 Defendant. 27 /// 28 /// 1 B. Excessive Force 2 Plaintiff asserts that certain Defendants violated his Eighth Amendment right against cruel and 3 unusual punishment by using excessive force on him. 4 The Eighth Amendment protects prisoners from inhumane methods of punishment and from 5 inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). The 6 unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments Clause of the 7 Eighth Amendment. Hudson v McMillian, 503 U.S. 1, 5 (1992) (citations omitted). Although prison 8 conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, 9 shelter, sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832–33 10 (1994) (quotations omitted). 11 For claims of excessive physical force, the issue is “whether force was applied in a good-faith 12 effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 13 U.S. at 7. Relevant factors for this consideration include “the extent of injury... [,] the need for 14 application of force, the relationship between that need and the amount of force used, the threat 15 ‘reasonably perceived by the responsible officials,’ and ‘any efforts made to temper the severity of a 16 forceful response.’” Id. (quoting Whitley v. Albers, 475 U.S. 1078, 1085 (1986)). The objective 17 component of an Eighth Amendment claim is contextual and responsive to contemporary standards of 18 decency, Hudson, 503 U.S. at 8 (quotation marks and citation omitted), and although de minimis uses 19 of force do not violate the Constitution, the malicious and sadistic use of force to cause harm always 20 violates contemporary standards of decency, regardless of whether or not significant injury is evident, 21 Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010) (citing Hudson, 503 U.S. at 9-10) (quotation marks 22 omitted); Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002). 23 1. Defendants Santos and Leon 24 Plaintiff alleges that, after Defendant Santos ordered Plaintiff to remove his boxer shorts and 25 Plaintiff asked to wait for a moment due to the presence of at least one female, Defendant Santos told 26 Plaintiff to “get down” and when Plaintiff asked what he had done, Defendant Santos sprayed Plaintiff 27 directly in the face with a canister of pepper spray. When Plaintiff went to the back of the shower to 28 rinse his eyes with his back to Defendant Santos, Defendant Santos entered the shower and beat 1 Plaintiff across his left leg with his MEB expandable baton. After Plaintiff turned around and faced 2 Defendant Santos, Defendant Santos left the shower and Defendant Leon sprayed Plaintiff in the face 3 with a canister of pepper spray while yelling for Plaintiff to get down. When Plaintiff attempted to 4 comply with the order to prone out on the ground, Defendant Santos re-entered the shower and hit 5 Plaintiff across the arm, wrist, elbow, and body with his baton. After other officers arrived at the 6 scene of the incident, Defendant Santos sprayed another canister of pepper spray in Plaintiff’s face. 7 As Plaintiff once again attempted to prone out, Defendant Santos entered the shower for a third time, 8 hit Plaintiff’s arms and legs with his baton, and grabbed Plaintiff by the ankle and dragged Plaintiff 9 out of the shower and onto the dayroom floor. 10 These allegations are sufficient to state a cognizable claim for excessive force against 11 Defendants Santos and Leon. 12 2. Defendants Benavides, Bejinez, Espinoza, Hill, Kennedy, Lopez, Luna, Salas, and 13 Trinidad 14 Plaintiff alleges that, after Defendant Espinoza made a call over her radio about a disturbance 15 in Building 1, Defendant Benavides and approximately ten responding officers, including Defendants 16 Bejinez, J. Bejinez, Espinoza, Hill, Kennedy, Leon, Lopez, Luna, Salas, and Trinidad, entered the 17 building waving batons and shaking up canisters of pepper spray. The Defendants formed a skirmish 18 line in front of the shower. After Defendant Santos sprayed Plaintiff in the face with pepper spray, 19 Plaintiff alleges that J. Benevides, J. Bejinez, S. Espinoza, J. Hill, C. Kennedy, W. Leon, S. Lopez, G. 20 Luna, A. Salas and E. Trinidad all emptied their cannisters of pepper spray on Plaintiff as they yelled 21 for Plaintiff to get down. 22 These allegations are sufficient to state a cognizable claim for excessive force against 23 Defendants J. Benevides, J. Bejinez, S. Espinoza, J. Hill, C. Kennedy, W. Leon, S. Lopez, G. Luna, A. 24 Salas and E. Trinidad. Plaintiff fails to state a cognizable claim against R. Newton, the tower guard, 25 because Plaintiff does not allege he engaged in any use of force. 26 Further, after Defendant Santos dragged Plaintiff out of the shower, Plaintiff asserts that 27 Defendants Hill and Salas jumped on Plaintiff’s back and began punching Plaintiff in the face and 28 head. Defendants Benavides and Luna held Plaintiff’s arm as Defendants Hill and Salas punched 1 Plaintiff in the head and face. Further, Defendants Benavides, Luna, Lopez, and Salas were punching 2 and pulling on Plaintiff’s wrist while yelling for Plaintiff to stop resisting. J. Bejinez, C. Kennedy, S. 3 Lopez, and M Santos kicked Plaintiff in the legs and groin area. Defendant Kennedy continued 4 kicking Plaintiff. 5 These allegations are sufficient to state a cognizable claim for excessive force against 6 Defendants Benavides, Hill, Salas, Luna, Lopez, Kennedy, Santos and Bejinez. 7 3. Defendant Deshazo 8 Plaintiff alleges that, when he arrived at the Facility B medical clinic, Defendants Bejinez and 9 Trinidad lifted him off the gurney in the stokes litter and slammed him to the ground in the holding 10 tank. This action caused the already too tight handcuffs under Plaintiff’s body to click tighter and dig 11 deeper into Plaintiff’s injured wrist, causing excruciating pain. Plaintiff alleges that he begged 12 Defendant Deshazo, the assigned medical triage coverage officer, to loosen up or remove the cuffs, but 13 Defendant Deshazo refused. 14 However, as in his original complaint, Plaintiff has not alleged that he asked Defendant 15 Deshazo more than once to loosen the handcuffs or that Defendant Deshazo otherwise knew that the 16 handcuffs were too tight and were causing Plaintiff to suffer severe pain. See Guerrero v. Rivera, No. 17 EDCV 13-0092-JGB (JPR), 2013 WL 878285, at *2 (C.D. Cal. Mar. 8, 2013) (finding that plaintiff 18 had failed to state a cognizable excessive force claim regarding overly tight handcuffs were the named 19 defendants had nothing to do with the handcuffing, that Plaintiff did not allege that he made more than 20 one request to any defendant to loosen the cuffs, or that any defendant was present for more than a few 21 moments and was able to observe the effect the handcuffs had on the plaintiff); Gregory v. Adams, No. 22 CIV S-05-1393 FCD EFB P, 2008 WL 486013, at *5 (E.D. Cal. Feb. 19, 2008) (holding that triable 23 issue existed as to whether officer who did not personally handcuff plaintiff nonetheless used 24 excessive force in ignoring plaintiff’s repeated assertions of pain and refusing to loosen cuffs for more 25 than five hours). Therefore, Plaintiff has not alleged a cognizable claim for excessive force based on 26 refusing to loosen overly tight handcuffs against Defendant Deshazo. 27 /// 28 /// 1 4. Failure to Intervene in Excessive Force 2 A prison official may be liable under § 1983 if he is aware that a fellow official is violating a 3 prisoner’s constitutional rights, but fails to intervene. See Cunningham v. Gates, 229 F.3d 1271, 1289 4 (9th Cir. 2000) (“[P]olice officers have a duty to intercede when their fellow officers violate the 5 constitutional rights of a suspect or other citizen.”) (citation omitted); see also Gaudreault v. 6 Municipality of Salem, 923 F.2d 203, 207 n. 3 (1st Cir. 1990) (“An officer who is present at the scene 7 who fails to take reasonable steps to protect the victim of another officer’s use of excessive force can 8 be held liable under section 1983 for his nonfeasance.”). A failure to intervene can support an 9 excessive force claim where the bystander-officers had a realistic opportunity to intervene, but failed 10 to do so. Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir. 2003); Cunningham, 229 F.3d at 11 1289. 12 Plaintiff asserts that Defendants Espinoza, Luna, W. Leon, and Newton witnessed Defendant 13 Santos’ unprovoked attack on Plaintiff, but failed to intervene. (ECF No. 47, at 7.) Liberally 14 construing Plaintiff’s allegations, Plaintiff states a cognizable claim for failure to intervene against 15 Defendants Espinoza, Luna, Leon, and Newton. 16 Plaintiff asserts that Defendants Benavides, Bejinez, Espinoza, Hill, Kennedy, Leon, Lopez, 17 Luna, Salas, and Trinidad all had a duty to intervene in Defendant Santos’ assault of Plaintiff. (ECF 18 No. 47, at 8.) However, as in the original complaint, Plaintiff has failed to allege facts demonstrating 19 that each of those Defendants was present when Defendant Santos utilized force on Plaintiff, that each 20 of those Defendants could see that Defendant Santos was using excessive force on Plaintiff, and that 21 each of those Defendants had a realistic opportunity to intervene during Defendant Santos’ assault of 22 Plaintiff. Plaintiff alleges that some or all of these Defendants were engaging in acts excessive force 23 at that time, and therefore were not failing to intervene. 24 Therefore, Plaintiff has failed to allege a cognizable claim for failure to intervene in excessive 25 force against Defendants Benavides, Bejinez, Hill, Kennedy, Leon, Lopez, Salas, and Trinidad. 26 C. Unreasonable Search 27 The Fourth Amendment prohibits only unreasonable searches. Bell v. Wolfish, 441 U.S. 520, 28 558 (1979); Byrd v. Maricopa Cnty. Sheriff’s Office, 629 F.3d 1135, 1140 (9th Cir. 2011); 1 Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988). The reasonableness of the search is 2 determined by the context, which “requires a balancing of the need for the particular search against the 3 invasion of personal rights that the search entails.” Bell, 441 U.S. at 559. Factors that must be 4 evaluated are “the scope of the particular intrusion, the manner in which it is conducted, the 5 justification for initiating it, and the place in which it is conducted.” Id.; Bull v. City and Cnty. of San 6 Francisco, 595 F.3d 964, 972 (9th Cir. 2010) (en banc). 7 1. Defendant Santos 8 Plaintiff incorporates all of his allegations which allege that Defendant Santos violated his 9 Fourth Amendment right against unreasonable searches when Defendant Santos ordered Plaintiff to 10 disrobe, blinded him with pepper spray, attacked him with a MEB baton, dragged him out of the 11 shower, beat, kicked, and stomped Plaintiff, applied cuffs on Plaintiff too tightly, stripped Plaintiff 12 naked, and carried Plaintiff across the prison yard naked in the presence of the inmate and staff 13 population.4 (ECF No. 47, at 18.) 14 However, the Court finds that Defendant Santos’ body search of Plaintiff ended when 15 Defendant Santos opened the shower gate and told Plaintiff to get down and cuff up. (ECF No. 47, at 16 6.) Therefore, Plaintiff has failed to allege a cognizable Fourth Amendment claim against Defendant 17 Santos based on allegations that Defendant Santos blinded him with pepper spray, attacked him with a 18 MEB baton, dragged him out of the shower, beat, kicked, and stomped Plaintiff, applied cuffs on 19 Plaintiff too tightly, stripped Plaintiff naked, and carried Plaintiff across the prison yard naked in the 20 presence of the inmate and staff population because the Fourth Amendment’s protection against 21 unreasonable searches is not applicable to any actions taken by Defendant Santos after the search 22 ended. 23 To the extent Plaintiff’s allegation is that Defendant Santos violated Plaintiff’s Fourth 24 Amendment right against unreasonable searches when Defendant Santos ordered Plaintiff to disrobe, 25 the Fourth Amendment applies to the invasion of bodily privacy in prisons. Bull, 595 F.3d at 974-75; 26 27 4 In claim II, Plaintiff also alleges a sexual assault as part of his Fourth Amendment claim. (ECF No. 28 47, p. 18.) This allegation is dealt with as part of the Eighth Amendment, infra. 1 Michenfelder, 860 F.2d at 333. Defendant’s order for and requiring Plaintiff to disrobe does not state a 2 cognizable claim. Similar strip searches have been held constitutionally permissible by the Ninth 3 Circuit and Supreme Court. See, e.g., Florence v. Bd. of Chosen Freeholders, 566 U.S. 318 (2012); 4 Bull v. City & County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc). “Shielding one’s 5 unclothed figure from the view of strangers, particularly strangers of the opposite sex is impelled by 6 elementary self-respect and personal dignity.” Michenfelder, 860 F.2d at 333. However, the Ninth 7 Circuit has held that occasional viewing of unclothed male prisoners by female correctional officers 8 does not violate the Fourth Amendment rights of the inmates. Id. at 334; see also Grummett v. 9 Rushen, 779 F.2d 491, 494-95 (9th Cir. 1985). 10 Here, Plaintiff asserts that Defendant Santos approached the shower that Plaintiff was in and 11 told Plaintiff to give his boxers to Defendant Santos as Defendant Espinoza, a female officer, entered 12 the building, looking toward the shower and the search of Plaintiff. However, Plaintiff’s boxers were 13 not removed until after Defendant Santos’ body search of Plaintiff was over. Therefore, Plaintiff has 14 failed to allege a cognizable Fourth Amendment claim against Defendant Santos based on allegations 15 that Defendant Santos ordered Plaintiff to take his boxers off while a female officer was able to view 16 the body search. 17 2. Defendant Responder officers 18 Plaintiff incorporates all of his allegations into the Fourth Amendment claim and thus, it is 19 unclear what his allegations are. Plaintiff appears to allege that Defendant Benavides, Bejinez, 20 Deshazo, Espinoza, Hill, Kennedy, Leon, Lopez, Luna, Newton, Santos and Trinidad violated his 21 Fourth Amendment right to unreasonable searches when they excessively pepper sprayed Plaintiff, 22 jumped on his back, hit Plaintiff in the head and face, kicked Plaintiff’s body, legs, and genitalia, 23 applied cuffs too tightly, and when Defendant Salas snatched off Plaintiff’s boxer shorts. (ECF No. 24 47, at 17.) Additionally, Plaintiff alleges that Defendants violated his Fourth Amendment right against 25 unreasonable searches when they failed to intervene when Defendant Salas removed Plaintiff’s boxer 26 shorts, leaving him naked in the presence of female guards and medical staff, and when he was moved 27 through the prison yard while still naked. 28 1 However, all of these allegations occurred after Defendant Santos’ body search of Plaintiff 2 ended. Plaintiff cannot convert claims for excessive force and failure to intervene into Fourth 3 Amendment violations. Therefore, Plaintiff has failed to allege a cognizable Fourth Amendment 4 claim against Defendants Benavides, Bejinez, Deshazo, Espinoza, Hill, Kennedy, Leon, Lopez, Luna, 5 Newton, Santos and Trinidad. 6 D. Violation of First Amendment Free Exercise of Religion Clause 7 “The right to exercise religious practices and beliefs does not terminate at the prison door.” 8 McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (citing O’Lone v. Shabazz, 482 U.S. 342, and 9 Bell v. Wolfish, 441 U.S. 520, 545 (1979). The right to free exercise of religious faith is, however, 10 ‘necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate 11 correctional goals or to maintain prison security.” McElyea, 833 F.2d at 197. Federal courts 12 “determine whether these competing interests are balanced properly by applying a ‘reasonableness’ 13 test.” Id. Action by prison officials that impacts an inmate’s right to free exercise of religion “is valid 14 if it is reasonably related to legitimate penological interests.” Id. (internal quotation marks omitted). 15 Defendants Salas, Bejinez, Trinidad, and Deshazo 16 Plaintiff alleges that, after he was cuffed at the wrists and ankles, placed in a stokes litter, and 17 placed on a gurney, Defendant Salas “snatched” Plaintiff’s boxer shorts off of his body and placed the 18 pepper spray-soaked underwear over Plaintiff’s face. Nothing was placed over Plaintiff’s genitalia in 19 order to cover them. Thus, at that point, Plaintiff was completely naked in front of Defendants 20 Hansen, Liebold, Sharp, and Espinoza, and Jane doe counselor, all women. Defendants Bejinez and 21 Trinidad then wheeled Plaintiff on the gurney across the yard, still completely naked, in the presence 22 of the inmate population, custody staff of both genders, and support services staff. Plaintiff was 23 placed, in the stokes litter, on the ground of the holding tank in the Facility B medical clinic, still 24 naked. Defendant Deshazo, the assigned medical triage coverage officer, did not cover up Plaintiff’s 25 genitalia at any time even though he opened the door to the medical clinic and let Inmate Homick, 26 who was able to see Plaintiff lying naked on the floor, into the clinic. (ECF No. 47, at 9-10.) Plaintiff 27 further alleges that these actions violated his First Amendment right to free exercise of religion, 28 specifically his “right to modesty under the Islamic Beliefs.” (Id. at 21.) 1 The Court finds that, liberally construed, these allegations are sufficient to plead a cognizable 2 claim for violations of Plaintiff’s First Amendment right to free exercise of religion against 3 Defendants Salas, Bejinez, Trinidad, and Deshazo. 4 E. Sexual Assault/Harassment 5 “Sexual harassment or abuse of an inmate by a corrections officer is a violation of the Eighth 6 Amendment. See Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (‘In the simplest and 7 most absolute of terms … prisoners [have a clearly established Eighth Amendment right] to be free 8 from sexual abuse ….’); see also Women Prisoners of the Dist. of Columbia Dep’t of Corr. v. District 9 of Columbia, 877 F. Supp. 634, 665 (D.D.C. 1994) (‘[U]nsolicited touching of … prisoners’ 10 [genitalia] by prison employees are “simply not part of the penalty that criminal offenders pay for their 11 offenses against society”’ (quoting Farmer v. Brennan, 511 U.S. 825, 834 … (1994))), aff’d in part 12 and vacated in part, 93 F.3d 910 … (D.C. Cir. 1996).” Wood v. Beauclair, 692 F.3d 1041, 1046 (9th 13 Cir. 2012.) “In evaluating a prisoner’s claim, courts consider whether ‘the officials act[ed] with a 14 sufficiently culpable state of mind’ and if the alleged wrongdoing was objectively ‘harmful enough’ to 15 establish a constitutional violation.” Id. 16 In this case, Plaintiff alleges that Defendant Salas “Plaintiff’s boxer shorts off his body, 17 strangling Plaintiff’s genitalia and ripping into his anus causing pain.” (ECF No. 47, at 18.) 18 However, to the extent that Plaintiff’s allegation that Defendant Salas “snatched off” Plaintiff’s 19 boxer shorts, abusing Plaintiff’s genitalia, meaning that Defendant Salas actually touched Plaintiff’s 20 genitalia, Plaintiff has failed to allege that any touch to his genitalia was more than brief. Berryhill v. 21 Schriro, 137 F.3d 1073 (8th Cir. 1998) (stating a prisoner plaintiff failed to establish a sexual assault 22 claim where two brief touches to an inmate’s buttocks, unaccompanied by any sexual comments or 23 banter, lasted only seconds and the inmate thought that the defendants were trying to embarrass him, 24 not rape him). A viable sexual assault claim is established if the inmate can prove that a prison staff 25 member, acting under color of law and without legitimate penological justification, touched the 26 prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff member's own sexual 27 gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner. Bearchild v. 28 Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020). Plaintiff alleges that he was being searched and was 1 ordered to remove his boxers, which he delayed because of the presence of women. Plaintiff does not 2 allege he was touched in a sexual manner, but that the boxers were removed in a manner which caused 3 pain. Plaintiff has failed to allege that the defendant had knowledge that the manner of removing the 4 boxers would cause Plaintiff harm or that Defendant intended to harm Plaintiff. Accordingly, even 5 though Plaintiff has concluded that removal of his boxers was painful, he has not stated facts sufficient 6 to show that he suffered sexual abuse sufficient to rise to the level of an Eighth Amendment violation, 7 Therefore, Plaintiff has not pled a cognizable claim for sexual assault against any named Defendant. 8 F. Conditions of Confinement 9 The Eighth Amendment protects prisoners from inhumane methods of punishment and from 10 inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). 11 Prison officials therefore have a “duty to ensure that prisoners are provided adequate shelter, food, 12 clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 13 2000) (citations omitted). “Although the routine discomfort inherent in the prison setting is 14 inadequate to satisfy the objective prong of an Eighth Amendment inquiry, ‘those deprivations 15 denying “the minimal civilized measure of life’s necessities” are sufficiently grave to form the basis of 16 an Eighth Amendment violation.’” Id.; see also Hudson v. McMillian, 503 U.S. 1, 9 (1992). “The 17 circumstances, nature, and duration of a deprivation of these necessities must be considered in 18 determining whether a constitutional violation has occurred.” Id. 19 “A prisoner claiming an Eighth Amendment violation must show (1) that the deprivation he 20 suffered was ‘objectively, sufficiently serious’; and (2) that prison officials were deliberately 21 indifferent to his [health or] safety in allowing the deprivation to take place.” Morgan, 465 F.3d at 22 1045. Thus, a prison official may be held liable under the Eighth Amendment for denying humane 23 conditions of confinement only if the official knows that the plaintiff faced a substantial risk of harm 24 and disregarded that risk by failing to take reasonable measures to abate it. Farmer v. Brennan, 511 25 U.S. 825, 837-45 (1994). Delays in providing showers and medical attention for inmates suffering 26 from harmful effects of pepper spray may violate the Eighth Amendment. Clement v. Gomez, 298 27 F.3d 898, 905-06 (9th Cir. 2002). 28 1 Plaintiff alleges that he was thoroughly sprayed with pepper spray during an incident with 2 various named Defendants. When Plaintiff arrived at the Facility B medical clinic, Defendant 3 Deshazo refused to summon medical staff to provide treatment, as Plaintiff was screaming in pain, 4 hyperventilating, coughing, and sweating. Instead, Defendant Deshazo placed a spit mask hood over 5 Plaintiff’s head even though Plaintiff was showing apparent signs of respiratory distress. While 6 Plaintiff wore the spit mask hood, Plaintiff was choking, gagging for air, hyperventilating, sweating, 7 mucous was sticking to the spit hood, which clogged up the mask and caused Plaintiff to partially 8 suffocate and fight for air, and he was in and out of consciousness. Defendant Deshazo disregarded 9 Plaintiff’s pleas for help, even though the Defendant was within ten feet of Plaintiff. 10 After Defendants Bejinez and Trinidad had a conversation with Defendant Benavides, 11 Defendants Bejinez and Trinidad wheeled Plaintiff across the yard to the gym for decontamination. 12 Defendants Bejinez and Trinidad removed the spit mask hood. After one of the officers stated that the 13 showers were not working, Defendants Bejinez and Trinidad left Plaintiff lying in the stokes litter on 14 the gurney, and sat down and had a personal conversation. Defendant Benavides entered the gym, told 15 Defendants Bejinez and Trinidad to remove the cuffs, take Plaintiff out of the stokes litter, and place 16 him on the bench. After placing Plaintiff on the bench, Defendants Bejinez and Trinidad just sat and 17 resumed their conversation. Another prison official entered the gym and twice poured water from a 18 bucket over Plaintiff’s head, but refused to pour a third bucket of water over Plaintiff after Plaintiff 19 requested the official do so. After that, Defendant Benavides told Defendants Bejinez and Trinidad to 20 take Plaintiff to administrative segregation and Defendants Bejinez and Trinidad did so. Plaintiff 21 alleges that he continued to feel burning from the pepper spray in his eyes and on his body for a few 22 days until he was able to take a shower. 23 The Court finds that, liberally construed, these allegations are sufficient to state a cognizable 24 claim for unconstitutional conditions of confinement against Defendants Deshazo, Bejinez, Trinidad, 25 and Benavides. 26 G. Deliberate Indifference to Serious Medical Needs 27 While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical 28 care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to 1 an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in 2 part on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1082–83 (9th Cir. 2014); Jett v. Penner, 3 439 F.3d 1091, 1096 (9th Cir. 2006). The two-part test for deliberate indifference requires Plaintiff to 4 show (1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner's condition could 5 result in further significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2) “the 6 defendant's response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (citation 7 omitted). 8 A defendant does not act in a deliberately indifferent manner unless the defendant “knows of 9 and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 10 (1994). The requisite state of mind is one of subjective recklessness, which entails more than ordinary 11 lack of due care. Snow, 681 F.3d at 985. Deliberate indifference may be shown by the denial, delay, 12 or intentional interference with medical treatment or by the way in which medical care is provided. 13 Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). “Deliberate indifference is a high 14 legal standard,” Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. 15 Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was “a purposeful act or failure 16 to respond to a prisoner’s pain or possible medical need” and the indifference caused harm. Jett, 439 17 F.3d at 1096. In applying this standard, the Ninth Circuit has held that before it can be said that a 18 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be substantial. 19 Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” 20 Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105–06).) 21 Plaintiff alleges that he was thoroughly pepper sprayed, kicked, punched, and stomped during 22 an incident with various Defendants. After the incident was over and Plaintiff was cuffed, Defendant 23 Hoggard brought a gurney. Plaintiff was placed on the gurney and taken to the Facility B medical 24 clinic. At the medical clinic, Defendant Deshazo was within ten feet of Plaintiff and disregarded 25 Plaintiff’s pleas for help even though he witnessed Plaintiff screaming in pain, hyperventilating, 26 coughing, sweating, choking, fighting for air through a spit hood mask, and drifting in and out of 27 consciousness. After Defendants Bejinez and Trinidad took Plaintiff to the gym for pepper spray 28 decontamination, one of the two Defendants stated that the showers were not working and then 1 ignored Plaintiff. Plaintiff needed assistance to put on a pair of boxer shorts. Also, Defendants 2 Bejinez and Trinidad had to carry Plaintiff into the administrative segregation unit. Then, four hours 3 after Plaintiff was taken to administrative segregation, Plaintiff was found unresponsive in his cell by 4 an administrative segregation unit officer. 5 The Court finds that, liberally construed, Plaintiff’s allegations state a cognizable claim for 6 deliberate indifference to serious medical needs against Defendants Bejinez, Deshazo, and Trinidad. 7 However, Plaintiff has not pled a cognizable claim for deliberate indifference to serious 8 medical needs against Defendants Benavides and Hoggard because Plaintiff has not alleged facts 9 demonstrating that each of those Defendants knew of and disregarded Plaintiff’s physical distress and 10 requests for medical attention. Plaintiff does not allege that Benavides witnessed Plaintiff not being 11 able to hold up himself up and that Plaintiff could not support himself with his injured arm, wrist, 12 knees, or leg. Indeed, Plaintiff alleges Defendant Benavides was at the Fac. B. Medical entrance when 13 Plaintiff was wheeled there for medical care. (ECF No. 47, at 11.) Plaintiff fails to state a cognizable 14 claim against Defendant Hoggard in that he alleges that Defendant Hoggard then entered the gym, 15 stopped approximately ten feet away from Plaintiff, wrote something down on a piece of paper, and 16 exited the gym. Hoggard returned, but when he did so Defendant Benavides instructed that Plaintiff 17 was to take Plaintiff to ad-seg. Indeed, Plaintiff alleges that Defendant Hoggard’s CDCR 7219 18 Injury/Assessment Medical Report of Injuries only indicated that Plaintiff had a scratch/abrasion on 19 his left knee and O.C. pepper spray on his torso. While plaintiff alleges the report “diminished” his 20 injuries, this allegation is insufficient to show that Hoggard knew of and disregarded an excessive risk 21 to inmate health or safety. Mere differences of opinion between a prisoner and prison medical staff or 22 between medical professionals as to the proper course of treatment for a medical condition do not give 23 rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058 24 H. Conspiracy 25 Plaintiff may be seeking to allege a conspiracy. To establish a cognizable claim for conspiracy 26 under 42 U.S.C. § 1983, a plaintiff must allege (1) the existence of an express or implied agreement 27 among the defendants to deprive the plaintiff of his constitutional rights, and (2) an actual deprivation 28 of those rights resulting from that agreement. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010). To 1 establish a conspiracy, Plaintiff allege specific facts showing “an agreement or meeting of the minds to 2 violate constitutional rights. To be liable, each participant in the conspiracy need not know the exact 3 details of the plan, but each participant must at least share the common objective of the conspiracy.” 4 Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (internal citations and quotation marks omitted). 5 The mere conclusory statement that defendants “conspired” together is not sufficient to state a 6 cognizable claim. Woodrum v. Woodward Cnty., 866 F.2d 1121, 1126 (9th Cir. 1989). 7 Here, Plaintiff alleges that Defendants Benavides and Hoggard had an “orchestrated plan of 8 action” to minimize Plaintiff’s documented injuries in order to isolate Plaintiff in administrative up a 9 serious investigation into excessive force and completion of an excessive force video deposition. 10 However, Plaintiff has failed to allege any specific facts establishing that Defendants Benavides and 11 Hoggard expressly or impliedly agreed together to deprive Plaintiff of his constitutional right to 12 medical care. Plaintiff’s conclusory allegations are insufficient. Therefore, Plaintiff has not pled a 13 cognizable conspiracy claim against Defendants Benavides and Hoggard. 14 I. State Regulations 15 Plaintiff alleges violations of various prison regulations by various defendants. However, § 16 1983 only provides a cause of action for the deprivation of federally protected rights. “To the extent 17 that the violation of a state law amounts to the deprivation of a state-created interest that reaches 18 beyond that guaranteed by the federal Constitution, [s]ection 1983 offers no redress.” Sweaney v. Ada 19 County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (quoting Lovell v. Poway Unified Sch. Dist., 90 20 F.3d 367, 370 (9th Cir. 1996)); see Davis v. Kissinger, No. CIV S–04–0878-GEB-DAD-P, 2009 WL 21 256574, at *12 n. 4 (E.D. Cal. Feb. 3, 2009). Nor is there any liability under § 1983 for violating 22 prison policy. Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (quoting Gardner v. Howard, 23 109 F.3d 427, 430 (8th Cir. 1997)). Thus, the violation of any state law or regulation that reaches 24 beyond the rights protected by the federal Constitution and/or the violation of any prison regulation, 25 rule or policy does not amount to a cognizable claim under federal law, nor does it amount to any 26 independent cause of action under § 1983. 27 J. Declaratory Relief 28 Plaintiff's complaint seeks a declaratory judgment. “A declaratory judgment, like other forms 1 of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public 2 interest.” Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431 (1948). “Declaratory relief 3 should be denied when it will neither serve a useful purpose in clarifying and settling the legal 4 relations in issue nor terminate the proceedings and afford relief from the uncertainty and controversy 5 faced by the parties.” United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). 6 If this action reaches trial and the jury returns a verdict in favor of Plaintiff, then that verdict 7 will be a finding that Plaintiff's constitutional rights were violated. Accordingly, a declaration that any 8 named Defendant violated Plaintiff's rights is unnecessary. 9 IV. Conclusions and Recommendations 10 IT IS HEREBY RECOMMENDED THAT: 11 1. Based on the foregoing, the Court find that Plaintiff has stated cognizable claims as 12 follows: (1) for excessive force against Defendants Correctional Officer M. Santos, 13 Correctional Officer W. Leon, Correctional Sergeant J. Benavides, Correctional Officer J. 14 Hill, Correctional Officer A. Salas, Correctional Officer G. Luna, Correctional Officer S. 15 Lopez, Correctional Officer C. Kennedy, Correctional Officer J. Bejinez, and Correctional 16 Officer E. Trinidad, (2) for violation of Plaintiff’s First Amendment right to free exercise 17 of religion against Defendants Correctional Officer A. Salas, Correctional Officer J. 18 Bejinez, Correctional Officer E. Trinidad, and Correctional Officer S. Deshazo, (3) for 19 unconstitutional conditions of confinement against Defendants Correctional Officer S. 20 Deshazo, Correctional Officer J. Bejinez, Correctional Officer E. Trinidad, and 21 Correctional Sergeant J. Benavides, (4) for deliberate indifference to serious medical needs 22 against Defendants Correctional Officer J. Bejinez, Correctional Officer S. Deshazo, and 23 Correctional Officer E. Trinidad, and (5) for failure to intervene against Correctional 24 Officer S. Espinoza, Correctional Officer G. Luna, and Correctional Officer R. Newton. 25 2. However, Plaintiff’s complaint fails to state any other cognizable claims for relief. Despite 26 being provided with the relevant pleading and legal standards, Plaintiff has been unable to 27 cure the remaining deficiencies and further leave to amend is not warranted. Lopez v. 28 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 1 3. All other claims and defendants be dismissed, with prejudice, based on Plaintiff’s failure to 2 state claims upon which relief may be granted. 3 These Findings and Recommendations will be submitted to the United States District Judge assigned 4 to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with 5 these Findings and Recommendations, Plaintiff may file written objections with the Court. The 6 document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 7 Plaintiff is advised that the failure to file objections within the specified time may result in the waiver 8 of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 9 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 11 IT IS SO ORDERED.

12 Dated: November 10, 2021 /s/ Barbara A. McAuliffe _ 13 UNITED STATES MAGISTRATE JUDGE

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