(PC) Palmer v. Peralta

• Court: District Court, E.D. California
• Decided: June 28, 2024
• Docket: 1:24-cv-00104
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNNY C. PALMER, Case No. 1:24-cv-0104-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION

14 PERALTA, et al., FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN 15 Defendants. CLAIMS AND DEFENDANTS

16 (ECF No. 9) 17 FOURTEEN (14) DEADLINE 18 19 Plaintiff Johnny C. Palmer (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action under 42 U.S.C. § 1983. The Court screened Plaintiff’s 21 complaint, and Plaintiff was granted leave to amend. Plaintiff’s first amended complaint is 22 currently before the Court for screening. (ECF No. 9.) 23 I. Screening Requirement and Standard 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 27 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 28 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 1 A complaint must contain “a short and plain statement of the claim showing that the 2 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 6 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 7 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 8 To survive screening, Plaintiff’s claims must be facially plausible, which requires 9 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 10 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 11 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 12 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 13 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 14 II. Plaintiff’s Allegations 15 Plaintiff is currently housed at Kern Valley State Prison, in Delano, California where the 16 events in the complaint are alleged to have occurred. Plaintiff names the following defendants: 17 (1) Peralta, correctional officer, (2) Escamilla, correctional officer, (3) Harris, correctional officer, 18 (4) Hickey, correctional officer, and (5) Coppalla, correctional sergeant.1 19 In claim 1, Plaintiff alleges the freedom from cruel and unusual punishment. On 10/3/23, 20 Defendant Hickey violated Plaintiff’s rights for cruel and unusual punishment. Plaintiff was 21 handcuffed and escorted to and from medical by Defendant Hickey and Harris per CDCR policy. 22 Once Plaintiff was back in his ASU cell, he told Defendant that Plaintiff was having chest pains 23 and wanted to see a doctor. Defendant Hickey asked “was I going to give up the cuffs.” Plaintiff 24 told Defendant Hickey that “I can’t feel my arms, can he call medical.” At this point, Defendant

25 1 On June 24, 2024, Plaintiff filed a “NOTICE of VOLUNTARY DISMISSAL of Defendants John Doe #1, John Doe #2, and Any Other Defendant the Court has Deemed Not Cognizable.” 26 ECF No. 10. The first amended complaint does not name as defendants John Doe #1 or John Doe 27 #2. Accordingly, the Court disregards ECF No. 10, the NOTICE of VOLUNTARY DISMISSAL of Defendants John Doe #1, John Doe #2, and Any Other Defendant the Court has Deemed Not 28 Cognizable. 1 Hickey began to pull the cuffed arms toward him and Defendant Harris through the food port on 2 the cell door. Defendant Hickey helped other named Defendants hold Plaintiff’s cuffed hands till 3 Plaintiff was cuffed to the outside of cell 109. Plaintiff told Hickey a number of times to uncuff 4 Plaintiff because Plaintiff could not feel his arms. Plaintiff was ignored by all the officers and 5 was left cuffed to cell 109 for an hour and 45 minutes and left cuffed for 36 hours. 6 In claim 2, Plaintiff alleges cruel and unusual punishment. Plaintiff was escorted back 7 from medical by Defendants Hickey and Harris. Once inside Plaintiff’s cell, Plaintiff told 8 Defendant Hickey that Plaintiff was having chest pains and needed to see a doctor. Plaintiff was 9 asked, “was I going to give up the cuffs,” and Plaintiff told them “I can’t feel my arms can you 10 call medical.” Hickey and Harris began to pull the already cuffed arms toward them through the 11 food port on the door. Harris called “another named defendant” to come help and hold the chains 12 once Plaintiff’s arms were out the door. Defendant Harris told “all named Defendants” let’s just 13 cuff him to the door. Other named Defendants left and came back with 2 pairs of leg cuffs and 14 gave them to Defendant Harris. Harris cuffed one side to Plaintiff waist chains and the other side 15 to the outside of cell 109. Plaintiff could not move off his door to get water or use the restroom 16 or even sit down. Plaintiff asked Defendant Harris a number of times to uncuff Plaintiff that he 17 could not feel his arms. Plaintiff was ignored and left cuffed to the door for 1 hour and 45 18 minutes and left handcuffed for 36 hours inside his cell. 19 In claim 3, Plaintiff alleges cruel and unusual punishment. Escamilla was called to 20 Plaintiff’s pod and helped pull Plaintiff’s already cuffed hands through the food port and out the 21 cell door and hold them so Plaintiff could not move away from the door. Harris told all the 22 named defendants “let’s just cuff him to the door.” Defendant Escamilla left and went to the 23 office and came back with two pair of let cuffs. He gave the cuffs to Harris and took the other 24 pair and cuffed them to the cell 109. Harris cuffed Plaintiff to the door and Plaintiff told 25 Defendants multiple times that Plaintiff could not feel his arms. He asked to be uncuffed but was 26 ignored. Defendant walked away leaving Plaintiff cuffed for a number of hours inside Plaintiff’s 27 cell. 28 In claim 4, Plaintiff alleges cruel and unusual punishment. Plaintiff alleges that on 1 10/3/23, Defendant Peralta helped pull Plaintiff’s already cuffed hands through the cell food port 2 and out Plaintiff’s cell door. He held them so Plaintiff could not move from his cell door. Then 3 Harris told all named Defendants let’s just cuff him to the door. Peralta then held Plaintiff’s 4 cuffed hands for other Defendants to go get more cuffs and cuff Plaintiff to the outside of cell 5 109. Plaintiff told Defendants, a number of times to let him go and uncuff Plaintiff. But Plaintiff 6 was ignored and Defendant just walked away leaving Plaintiff cuffed for a number of hours inside 7 his cell. 8 In claim 5, Plaintiff alleges cruel and unusual punishment. On 10/3/23, Defendant 9 Coppalla failed to stop Plaintiff from being improperly restrained and /or allowing Plaintiff to 10 remain improperly restrained. By CDCR policy after being called to Plaintiff’s cell by 11 Defendants Hickey and Harris, Plaintiff told sergeant Coppalla that Plaintiff could not feel his 12 arms and showed her that Plaintiff was handcuffed to the out of cell 109 and inside his cell. 13 Plaintiff asked that Coppalla have her officers take the cuffs off of Plaintiff. She did not tell 14 defendants anything and walked away. She did not come back and Plaintiff was left handcuffed 15 to the outside of cell 109 for 1 hour and 45 minutes and handcuffed in his cell for 36 hours, a 16 clear violation of CDCR policy. 17 As remedies, Plaintiff sees compensatory damages and punitive damages. 18 III. Discussion 19 A. Federal Rule of Civil Procedure 8 20 Pursuant to Rule 8, a complaint must contain “a short and plain statement of the claim 21 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed factual allegations are 22 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must set 24 forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 25 face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual allegations are 26 accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556–57; Moss, 572 27 F.3d at 969. 28 Plaintiff’s complaint is relatively short but it is not plain statement of his claims. Many of 1 Plaintiff's allegations are conclusory do not state what happened, when it happened, or which 2 defendant was involved. He fails to state the factual basis for the conclusions. Plaintiff must 3 clearly state what happened, when it happened, and who was involved. 4 B. Supervisor Liability 5 Insofar as Plaintiff is attempting to sue Defendant Warden, or any other defendant, based 6 solely upon his supervisory role, he may not do so. Liability may not be imposed on supervisory 7 personnel for the actions or omissions of their subordinates under the theory of respondeat 8 superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th 9 Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 10 297 F.3d 930, 934 (9th Cir. 2002). 11 Supervisors may be held liable only if they “participated in or directed the violations, or 12 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 13 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. 14 Bennett, 567 F.3d 554, 570 (9th Cir. 2009). “The requisite causal connection may be established 15 when an official sets in motion a ‘series of acts by others which the actor knows or reasonably 16 should know would cause others to inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d at 17 570. Supervisory liability may also exist without any personal participation if the official 18 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 19 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 20 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other 21 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). When a defendant holds a supervisory 22 position, the causal link between such defendant and the claimed constitutional violation must be 23 specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 24 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement 25 of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 26 673 F.2d 266, 268 (9th Cir. 1982). 27 To the extent Plaintiff alleges a claim against Defendant Coppalla, he fails to state a 28 cognizable claim. Plaintiff alleges that Defendant Coppalla left Plaintiff handcuffed in violation 1 of CDCR policy. As explained below, violation of CDCR policy does not state a constitutional 2 claim. 3 C. Eighth Amendment 4 1. Excessive Force 5 The Eighth Amendment protects prisoners from inhumane methods of punishment and 6 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 7 2006). The unnecessary and wanton infliction of pain violates the Cruel and Unusual 8 Punishments Clause of the Eighth Amendment. Hudson v McMillian, 503 U.S. 1, 5 (1992) 9 (citations omitted). Although prison conditions may be restrictive and harsh, prison officials must 10 provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. 11 Farmer v. Brennan, 511 U.S. 825, 832–33 (1994) (quotations omitted). 12 “[W]henever prison officials stand accused of using excessive physical force in violation 13 of the [Eighth Amendment], the core judicial inquiry is...whether force was applied in a good- 14 faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” 15 Hudson, 503 U.S. at 6-7. Not “every malevolent touch by a prison guard gives rise to a federal 16 cause of action.” Id. at 9. De minimis uses of physical force do not violate the constitution 17 provided that the use of force is not of a sort “repugnant to the conscience of mankind.” Whitley 18 v. Albers, 475 U.S. 312, 327 (1986) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976). 19 For claims of excessive physical force, the issue is “whether force was applied in a good- 20 faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” 21 Hudson, 503 U.S. at 7. Relevant factors for this consideration include “the extent of injury... [,] 22 the need for application of force, the relationship between that need and the amount of force used, 23 the threat ‘reasonably perceived by the responsible officials,’ and ‘any efforts made to temper the 24 severity of a forceful response.’ ” Id. (quoting Whitley v. Albers, 475 U.S. 1078, 1085 (1986) ). 25 Finally, because the use of force relates to the prison's legitimate penological interest in 26 maintaining security and order, the court must be deferential to the conduct of prison officials. 27 See Whitley, 475 U.S. at 321–22. 28 Plaintiff alleges excessive force in violation of the Eighth Amendment as to handcuffing 1 and the use of the port to cuff Plaintiff. Plaintiff states a cognizable claim against Defendants 2 Harris and Hickey. Plaintiff alleges that he told Defendant Hickey and Harris multiple times that 3 the cuffing was painful. But Plaintiff fails to allege a claim against any other defendant. Plaintiff 4 does not allege he told other defendants he was in pain multiple times and his allegations 5 grouping “Defendants” together does not state a cognizable claim. Each Defendant is entitled to 6 know their alleged conduct which purportedly violated Plaintiff’s rights. Johnson v. Frauenheim, 7 No. 1:18-cv-01477-AWI-BAM (PC), 2021 WL 5236498, at *8 (E.D. Cal. Nov. 10, 2021) 8 (rejecting without leave to amend excessive-force claim because plaintiff did not allege that he 9 asked defendant “more than once to loosen” handcuffs or that defendant “otherwise knew that the 10 handcuffs were too tight and were causing [p]laintiff to suffer severe pain”), findings and 11 recommendations adopted by 2021 WL 5982293 (E.D. Cal. Dec. 17, 2021); see also Guerrero v. 12 Rivera, No. EDCV 13-0092-JGB (JPR), 2013 WL 878285, at *2 (C.D. Cal. Mar. 8, 2013) 13 (finding that plaintiff had failed to state a cognizable excessive force claim regarding overly tight 14 handcuffs where the named defendants had nothing to do with the handcuffing, that Plaintiff did 15 not allege that he made more than one request to any defendant to loosen the cuffs, or that any 16 defendant was present for more than a few moments and was able to observe the effect the 17 handcuffs had on the plaintiff); Gregory v. Adams, No. CIV S-05-1393 FCD EFB P, 2008 WL 18 486013, at *5 (E.D. Cal. Feb. 19, 2008) (holding that triable issue existed as to whether officer 19 who did not personally handcuff plaintiff nonetheless used excessive force in ignoring plaintiff's 20 repeated assertions of pain and refusing to loosen cuffs for more than five hours); Salazar v. L.A. 21 Cnty. Sheriff's Dep't, No. CV 17-07686-ODW (DFM), 2021 WL 3438653, at *2 (C.D. Cal. July 22 6, 2021) (rejecting without leave to amend excessive-force claim because plaintiff didn't allege 23 facts showing how handcuffs caused him pain or injury or how he communicated that to 24 defendants), accepted by 2021 WL 4338946 (C.D. Cal. Sept. 23, 2021). 25 As to pulling Plaintiff’s hands through the food port, Plaintiff fails to allege the force used 26 and fails to allege any injury. 27 Further, despite being informed he must clarify his allegations, Plaintiff fails to allege 28 what his conduct was which necessitated the handcuffing, what he was doing, whether he was 1 complying with officers or other factual support. Plaintiff has been unable to cure this deficiency. 2 2. Deliberate Indifference to Medical Care 3 A prisoner's claim of inadequate medical care does not constitute cruel and unusual 4 punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of 5 “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 6 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate 7 indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure 8 to treat a prisoner's condition could result in further significant injury or the ‘unnecessary and 9 wanton infliction of pain,’ ” and (2) “the defendant's response to the need was deliberately 10 indifferent.” Jett, 439 F.3d at 1096. A defendant does not act in a deliberately indifferent manner 11 unless the defendant “knows of and disregards an excessive risk to inmate health or safety.” 12 Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Deliberate indifference is a high legal standard,” 13 Simmons v. Navajo County, Ariz, 609 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 14 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was “a purposeful act or failure to 15 respond to a prisoner's pain or possible medical need” and the indifference caused harm. Jett, 439 16 F.3d at 1096. 17 Negligence or medical malpractice do not rise to the level of deliberate indifference. 18 Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 19 105-106). “[A] complaint that a physician has been negligent in diagnosing or treating a medical 20 condition does not state a valid claim of medical mistreatment under the Eighth Amendment. 21 Medical malpractice does not become a constitutional violation merely because the victim is a 22 prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th 23 Cir. 1995). Even gross negligence is insufficient to establish deliberate indifference to serious 24 medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Additionally, a 25 prisoner's mere disagreement with diagnosis or treatment does not support a claim of deliberate 26 indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 27 Further, a “difference of opinion between a physician and the prisoner—or between 28 medical professionals—concerning what medical care is appropriate does not amount to 1 deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. 2 Vild, 891 F.2d at 242, overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 3 1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir. 2012)) (citing 4 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must show that the 5 course of treatment the doctors chose was medically unacceptable under the circumstances and 6 that the defendants chose this course in conscious disregard of an excessive risk to [his] health.” 7 Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks omitted). 8 The Court is unable to determine from the context of the allegations whether Plaintiff was 9 suffering a serious medical need and if each of the defendants “knows of and disregards an 10 excessive risk to inmate health or safety.” Merely stating that Plaintiff wanted to see medical is 11 insufficient. Plaintiff has been unable to cure this deficiency. 12 3. Conditions of Confinement 13 Although the Constitution “ ‘does not mandate comfortable prisons,’ ” Wilson v. Seiter, 14 501 U.S. 294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 349), “inmates are entitled 15 to reasonably adequate sanitation, personal hygiene, and laundry privileges, particularly over a 16 lengthy course of time.” Howard v. Adkison, 887 F.2d 134, 137 (9th Cir. 1989). Some conditions 17 of confinement may establish an Eighth Amendment violation “in combination” when each alone 18 would not suffice, but only when they have a combined effect that produces the deprivation of a 19 single, identifiable human need such as food, warmth, or exercise—for example, a low cell 20 temperature at night combined with a failure to issue blankets. Wilson, 501 U.S. at 304–05 21 (comparing Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (outdoor exercise required 22 when prisoners are confined in small cells almost 24 hours per day), with Clay v. Miller, 626 F.2d 23 345, 347 (4th Cir. 1980) (outdoor exercise not required when prisoners had access to dayroom 18 24 hours per day)). Temporary unconstitutional conditions of confinement do not necessarily rise to 25 the level of constitutional violations. See Anderson v. Cty. of Kern, 45 F.3d 1310, 1315 (9th Cir.), 26 opinion amended on denial of reh'g, 75 F.3d 448 (9th Cir. 1995), abrogated on other grounds by 27 Sandin v. Conner, 515 U.S. 472 (1995) (in evaluating challenges to conditions of confinement, 28 length of time the prisoner must go without basic human needs may be considered)). 1 Plaintiff fails to state a conditions of confinement claim. Plaintiff alleges that he was 2 handcuffed to a cell for 1 hour and 45 minutes and could not get water, sit or use the restroom. 3 Plaintiff also alleges he was otherwise handcuffed in his cell for 36 hours. Plaintiff has not 4 alleged an insufficiently serious condition violative of the Eighth Amendment by these temporary 5 conditions. Anderson, 45 F.3d at 1315 (no constitutional violation for placement in safety cages 6 where the sanitary limitations imposed upon them were more than temporary and where inmate 7 was in danger of self-harm). Further, Plaintiff fails to allege any harm from being handcuffed in 8 his cell for 36 hours. Plaintiff has been unable to cure this deficiency. 9 Adequate food is a basic human need protected by the Eighth Amendment. See Keenan v. 10 Hall, 83 F.3d 1083, 1091 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998). The Eighth 11 Amendment right to food was clearly established as of at least 2001. Foster v. Runnels, 554 F.3d 12 807, 815 (9th Cir. 2009). Denial of food service presents a sufficiently serious condition to meet 13 the objective prong of the Eighth Amendment deliberate indifference analysis. Id. at 812–13 14 (denial of 16 meals over 23 days was “a sufficiently serious deprivation because food is one of 15 life's basic necessities”); and id. at 812 n.1 (denial of 2 meals over 9-week period was not 16 sufficiently serious to meet objective prong of Eighth Amendment deliberate indifference).“The 17 Eighth Amendment ‘requires only that prisoners receive food that is adequate to maintain 18 health.’” Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1259 (9th Cir. 2016) (citing Foster, 554 19 F.3d at 813 n.2). 20 Plaintiff fails to allege any prolonged deprivation of food. Temporary conditions are also 21 not a sufficiently serious deprivation to state a cognizable claim under the Eighth Amendment. 22 D. Title 15 and Policy Violation 23 To the extent that any Defendant has not complied with applicable state statutes or prison 24 regulations, these deprivations do not support a claim under § 1983. Section 1983 only provides a 25 cause of action for the deprivation of federally protected rights. See, e.g., Nible v. Fink, 828 Fed. 26 Appx. 463 (9th Cir. 2020) (violations of Title 15 of the California Code of Regulations do not 27 create private right of action); Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) (section 28 1983 claims must be premised on violation of federal constitutional right); Prock v. Warden, No. 1 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at *11–12 (E.D. Cal. Oct. 8, 2013) (noting that 2 several district courts have found no implied private right of action under title 15 and stating that 3 “no § 1983 claim arises for [violations of title 15] even if they occurred.”); Parra v. Hernandez, 4 No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. Cal. Nov. 13, 2009) (granting motion to 5 dismiss prisoner's claims brought pursuant to Title 15 of the California Code of Regulations); 6 Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW (PC), 2009 WL 1211372, at *9 (E.D. 7 Cal. May 1, 2009) (holding that there is no private right of action under Title 15 of the California 8 Code of Regulations); Tirado v. Santiago, No. 1:22-CV-00724 BAM PC, 2022 WL 4586294, at 9 *5 (E.D. Cal. Sept. 29, 2022), report and recommendation adopted, No. 1:22-CV-00724 JLT 10 BAM PC, 2022 WL 16748838 (E.D. Cal. Nov. 7, 2022) (same). 11 IV. Conclusion and Order 12 For the reasons stated, the Court finds that Plaintiff states a cognizable claim for excessive 13 force against Defendants Harris and Hickey, correctional officers, for excessive force in violation 14 of the Eighth Amendment for not responding when Plaintiff told Defendant Hickey and Harris 15 multiple times that the handcuffing was painful. Despite being provided with the relevant 16 pleading and legal standards, Plaintiff has been unable to cure the identified deficiencies and 17 further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 18 However, Plaintiff’s complaint fails to state any other cognizable claims against any other 19 defendants. 20 Furthermore, it is HEREBY RECOMMENDED that: 21 1. This action proceed on Plaintiff’s first amended complaint, filed June 24, 2024, (ECF No. 22 9), for excessive force against Defendants Harris and Hickey, correctional officers, for 23 excessive force in violation of the Eighth Amendment for not responding when Plaintiff 24 told Defendants Hickey and Harris multiple times that the handcuffing was painful; and 25 2. All other claims and defendants be dismissed based on Plaintiff’s failure to state claims 26 upon which relief may be granted. 27 * * * 28 These Findings and Recommendations will be submitted to the United States District 1 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 2 being served with these Findings and Recommendations, Plaintiff may file written objections 3 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 4 and Recommendations.” Plaintiff is advised that the failure to file objections within the specified 5 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 6 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 7 F.2d 1391, 1394 (9th Cir. 1991)). 8 IT IS SO ORDERED. 9

10 Dated: June 28, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 11

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28