1 2 3 4 5 6
7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 ANTHONY A. SANCHEZ, Case No. 1:21-cv-01770-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, 12 RECOMMENDING THAT THIS ACTION v. 13 PROCEED ON PLAINTIFF’S EIGHTH MARINA MURO, et al., AMENDMENT EXCESSIVE FORCE 14 CLAIM AGAINST DEFENDANTS NUNEZ- Defendants. RUIZ, CALVO, JOHN DOE 3, AND JANE 15 DOE 4; PLAINTIFF’S EIGHTH 16 AMENDMENT FAILURE TO PROTECT CLAIM AGAINST DEFENDANTS NUNEZ- 17 RUIZ AND JOHN DOE 3; AND PLAINTIFF’S CLAIM FOR UNWANTED 18 MEDICAL TREATMENT IN VIOLATION 19 OF THE FOURTEENTH AMENDMENT AGAINST DEFENDANT JANE DOE 4; 20 AND THAT ALL OTHER CLAIMS BE 21 DISMISSED
22 (ECF No. 18)
23 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 24
25 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 26 27 Anthony A. Sanchez (“Plaintiff”) is a state prisoner proceeding pro se and in forma 28 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the 1 complaint commencing this action on December 16, 2021. (ECF No. 1). 2 On March 21, 2022, the Court screened Plaintiff’s complaint. (ECF No. 11). The Court 3 gave Plaintiff thirty days to either: “a. File a First Amended Complaint that is no longer than 4 twenty pages (including exhibits)….; or b. Notify the Court in writing that he wants to stand 5 on his complaint.” (Id. at 18). After being granted an extension of time (ECF No. 16), Plaintiff 6 filed a First Amended Complaint on May 16, 2022 (ECF No. 18), which is now before this 7 Court for screening. 8 The Court has reviewed the First Amended Complaint. Plaintiff generally alleges that 9 defendants Nunez-Ruiz, Calvo, John Doe 3 (a Correctional Officer), and Jane Doe 4 (a Nurse) 10 used excessive force, including placing and/or leaving Plaintiff in unduly tight handcuffs, that 11 defendant Jane Doe 4 provided unwanted medical treatment, and that defendant Keyfauver 12 failed to properly process his 602 appeals.1 13 For the reasons described below, the Court will recommend that this action proceed on 14 the following claims: Plaintiff’s Eighth Amendment excessive force claim against defendants 15 Nunez-Ruiz, Calvo, John Doe 3 (a Correctional Officer), and Jane Doe 4 (a Nurse); Plaintiff’s 16 Eighth Amendment failure to protect claim against defendants Nunez-Ruiz and John Doe 3 (a 17 Correctional Officer); and Plaintiff’s claim for unwanted medical treatment in violation of the 18 Fourteenth Amendment against defendant Jane Doe 4 (a Nurse).2 The Court will also 19 recommend that all other claims be dismissed. 20 Plaintiff has twenty-one days from the date of service of these findings and 21 recommendations to file his objections. 22 \\\ 23 \\\ 24
25 1 602s are also referred to as grievances. 26 2 Plaintiff is advised that the Doe defendants cannot be served until Plaintiff has identified them and filed a motion to substitute, or amended his complaint to substitute, the named defendants in place of the Doe 27 defendants. For service to be successful, the Court and/or the United States Marshal must be able to identify and locate the defendant to be served. Plaintiff will be required to identify the Doe defendants as the litigation 28 proceeds. The Court notes that, once discovery opens, Plaintiff will be given the opportunity to seek information to identify the Doe defendants. 1 I. SCREENING REQUIREMENT 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 4 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 5 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 6 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 7 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 9), the Court may 8 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 9 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 10 determines that the action or appeal fails to state a claim upon which relief may be granted.” 11 28 U.S.C. § 1915(e)(2)(B)(ii). 12 A complaint is required to contain “a short and plain statement of the claim showing 13 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 14 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 15 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 16 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 17 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 18 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 19 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 20 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 21 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a 22 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 23 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 24 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 25 pro se complaints should continue to be liberally construed after Iqbal). 26 II. SUMMARY OF PLAINTIFF’S FIRST AMENDED COMPLAINT 27 At times, Plaintiff’s complaint is difficult to understand. What follows is the Court’s 28 best understanding of Plaintiff’s factual allegations. 1 Plaintiff sues five defendants: J. Nunez-Ruiz, a Correctional Officer; Calvo, a 2 Correctional Officer; John Doe 3, a Correctional Officer; Jane Doe 4, a Nurse; and B. 3 Keyfauver, an Appeals Coordinator. 4 Plaintiff alleges as follows: 5 On January 12, 2021, Plaintiff was transferred to Wasco State Prison-Reception Center 6 (“WSP-RC”) for a court hearing that derived from a fight with Correctional Officer Mark 7 Gonzalez that occurred on November 13, 2017. Plaintiff had been going back and forth for 8 court since 2018. Many correctional officers knew about the incident/case, but this time 9 Plaintiff was housed in General Population and not in the Administrative Segregation Unit 10 (“ASU”). 11 On January 23, 2021, at breakfast, Plaintiff was confronted by the alleged victim, M. 12 Gonzalez. M. Gonzalez said, “what’s up” to Plaintiff and laughed. He then said, “I can[’]t 13 wait to testify.” He then challenged Plaintiff, saying “what you going to do now[?]” 14 Plaintiff immediately returned to his cell, and then he came back out to throw away 15 trash. He did not see M. Gonzalez. However, he prepared a 602 appeal and witnessed it 16 dropped in the appeal box the following day by Correctional Officer Muro, who at the time was 17 escorting Plaintiff to the ASU. Correctional Officer Muro was present on November 13, 2017, 18 along with many other correctional officers who kicked, stomped, hit, and battered Plaintiff. 19 Plaintiff still has flashbacks of the incident. 20 On the way to the ASU, Correctional Officer Muro told Plaintiff, “you know all my co- 21 workers know what you did and I’m doing you a favor putting you in ASU.” 22 A correctional captain released Plaintiff from ASU the following day, stating “you 23 shouldn’t be here long anyway.” 24 Plaintiff wanted to be sure his 602 appeal was processed, so he submitted a CDCR-22 25 Form (Inmate Request for Interview) to defendant Keyfauver. Defendant Keyfauver’s assistant 26 came and spoke with Plaintiff right after Plaintiff was moved out of the Quarantine Building to 27 B-6. Plaintiff spoke with the assistant about his fear of retaliation and how he wanted to make 28 sure his 602 appeal was processed. She assured Plaintiff that it would be, as long as she was 1 working, but she was not working on the day that Correctional Officer Muro took Plaintiff to 2 ASU. Also, she had mentioned that her last day was Friday. 3 In between the time of talking to the assistant and May 6, 2021, Plaintiff submitted 4 three 602 appeals and never received a receipt that they were processed. 5 Plaintiff is not able to file/submit a 602 appeal like other inmates. 6 Plaintiff sent one 602 appeal to Sacramento. That appeal was processed as “Staff 7 Misconduct” on March 10, 2021. 8 On April 24, 2021, Plaintiff was moved to D-Yard Building 5. The day before, Plaintiff 9 submitted a 602 appeal through the mail. He asked to receive a receipt, and Correctional 10 Officer Ramirez said he would sign it the following day. The 602 appeal was never processed, 11 and the CDCR-22 was not signed by Correctional Officer Ramirez. 12 Correctional Officer Perez and defendant Nunez-Ruiz welcomed Plaintiff to D-5 upon 13 his arrival, and they stated that they are the regular correctional officers five days of the week. 14 On April 26, 2021, Plaintiff attempted to mail a 602 appeal to Sacramento. However, 15 Correctional Officer Perez was hesitant, and told Plaintiff to wait for defendant Nunez-Ruiz. 16 The appeal was on deliberate indifference, and it was never processed. 17 Defendant Keyfauver is responsible for processing inmate 602 appeals, and he never 18 responds to any CDCR-22s that Plaintiff submits. 19 On May 6, 2021, defendant Nunez-Ruiz and Correctional Officer John Doe 1 decided to 20 search Plaintiff’s cell. At around 8:30 p.m., Plaintiff and his cellmate were instructed to step 21 out of the cell and fully comply. About five minutes later they were allowed to return. As 22 Plaintiff was walking towards his cell, Correctional Officer John Doe 1 and defendant Nunez- 23 Ruiz confronted Plaintiff. Correctional Officer John Doe 1 asked Plaintiff to have a seat, and 24 Plaintiff responded, “what[’]s this all about[?]” Correctional Officer John Doe 1 then said, 25 “your [sic] not looking too good” and hit his alarm. 26 Plaintiff was nervous and frightened because he was battered before. Moments later 27 numerous staff arrived at D-5. 28 Defendants Nunez-Ruiz, Calvo, and John Doe 3 responded to the alarm (defendant 1 Calvo was present when Plaintiff was battered on November 13, 2017). These three officers 2 surrounded Plaintiff as defendant Jane Doe 4 started to ask Plaintiff questions. There were 3 about 3-4 correctional officers and 2-3 medical staff present. Additionally, all inmates in D-5 4 looked outside toward Plaintiff. 5 Defendant Jane Doe 4 took Plaintiff’s vitals. Plaintiff attempted to return to his cell, 6 and he said “I’m good” more than once. However, defendant Jane Doe 4 was persistent even 7 after Plaintiff’s refusal and tried to put “something” in or over Plaintiff’s mouth. Plaintiff 8 moved his head backward but still “received it.” For comfort Plaintiff attempted to adjust it 9 and lifted his hand up to grab it. 10 At this time, defendant John Doe 3 grabbed Plaintiff’s hand and twisted his arm and 11 wrist. Then defendant Nunez-Ruiz or Calvo grabbed Plaintiff’s other arm. One of these 12 defendants slammed Plaintiff’s face on the table. Plaintiff was handcuffed to the tightest 13 capacity, with his wrist bent and in pain. 14 Plaintiff was fully compliant. He stood up and was directed to another table by medical 15 staff. Plaintiff, in pain, yelled “what the fuck” and sat on the orange board. Defendant Jane 16 Doe 4 said “he has to lay down,” and defendants Nunez-Ruiz, Calvo, and John Doe 3 forced 17 Plaintiff to lay on his handcuffed hands. Plaintiff yelled “my hands,” but he was ignored. All 18 the straps on the orange board were pulled tightly and Plaintiff was fully subdued. 19 Plaintiff was escorted out of the building. Plaintiff told staff, “I can’t feel my hands, 20 what the fuck.” The correctional officer defendants laughed. Plaintiff yelled at them that they 21 were treating him like an animal. 22 At CTC Plaintiff only saw defendants Nunez-Ruiz, Calvo, and John Doe 3. While 23 Plaintiff was being escorted one of the medical staff covered Plaintiff’s mouth with something, 24 making it hard to breathe. 25 Plaintiff saw nurse Tomchat, who asked Plaintiff if he remembered her (she pushed the 26 gurney that Plaintiff was on on November 13, 2017). 27 Plaintiff was on the board for around forty-five minutes when he was given an 28 ultimatum. A correctional officer told Plaintiff, “look if you want these cuffs loosened just go 1 to the hospital and get cleared.” Plaintiff agreed. 2 Plaintiff was taken to the hospital in Delano and was cleared. While there, Plaintiff 3 mentioned to one of the correctional officers that he was not able to feel his left hand. The 4 correctional officer said, “do you want to be here all night[?] [I]t’ll probably go away 5 tomorrow.” Plaintiff did not mention his hand to hospital staff. 6 The following morning Plaintiff still could not feel his left hand. Plaintiff had a lot of 7 pain in his wrists, and he saw bruising on his arms. Plaintiff prepared a 602 appeal on 8 excessive force and deliberate indifference, but he did not submit it. 9 On May 7 or 8, 2021, Plaintiff submitted a medical request regarding his hand. On May 10 10, 2021, Plaintiff was called to medical. He told Nurse Montes what happened. Plaintiff also 11 asked why defendant Jane Doe 4 reacted the way she did, and he was told it was out of 12 precaution. He also asked whether handcuffs are usually taken off when an inmate is put on an 13 orange board, and she told him that they usually are. 14 On May 17, 2021, defendant Keyfauver, along with his assistant, came to talk to 15 Plaintiff about his letter to internal affairs. Defendant Keyfauver told Plaintiff that “we’re not 16 throwing away your appeals.” Plaintiff told defendant Keyfauver that he has logged when his 17 602 appeals and Form 22s were submitted, that this is retaliation, and that someone will be held 18 accountable. 19 Defendant Keyfauver told Plaintiff that if he has any appeals he wants to turn in, he can 20 do it now, right to defendant Keyfauver. The next day Plaintiff turned in his 602 appeal 21 regarding excessive force and deliberate indifference. The appeal was processed and denied. 22 Plaintiff also asked defendant Keyfauver who has a key to the Appeals Box, and 23 defendant Keyfauver told Plaintiff that it was just him and his assistant. Plaintiff told defendant 24 Keyfauver that he saw an appeal dropped in the box on January 24, but it was never processed. 25 Plaintiff received a Rules Violation Report for drug paraphernalia, and the allegations 26 were dismissed. Plaintiff believes that “Defendant” submitted the Rules Violation Report to 27 cover-up the injuries Plaintiff received on May 6. Defendant Nunez-Ruiz stated that the search 28 occurred after and was because of “a code 1 medical emergency.” The Rules Violation Report 1 did not mention any use of force. 2 In disregard of California Code of Regulations Title 15, defendant Calvo and 3 Correctional Officer John Doe 2 served Plaintiff with a copy of the Rules Violation Report. 4 Defendant Calvo insinuated that Plaintiff did not listen and was on drugs on May 6, 2021. 5 While Plaintiff was returning to his cell, he heard defendant Calvo say, “yeah Gonzalez, this 6 happened in 2017 at the end right here in this unit.” 7 Plaintiff alleges there is ongoing retaliation and harassment. Plaintiff also alleges that if 8 his 602 appeals were properly processed it would deter this type of activity and could have 9 prevented this specific incident. 10 Plaintiff brings claims against defendant Nunez-Ruiz for excessive force and failure to 11 protect. Plaintiff also brings a claim against defendant Nunez-Ruiz because he lied on a Rules 12 Violation Report. Plaintiff also alleges that “this was all unnecessary an[d] unwanted medical 13 treatment initially.” Plaintiff also brings a First Amendment retaliation claim against defendant 14 Nunez-Ruiz. 15 Plaintiff brings a claim against defendant Calvo for excessive force. Plaintiff also 16 alleges that defendant Calvo violated Plaintiff’s procedural due process rights when he served 17 Plaintiff with the Rules Violation Report. Plaintiff also brings a First Amendment retaliation 18 claim against defendant Calvo. 19 Plaintiff brings a claim against defendant John Doe 3 for excessive force and failure to 20 protect. Plaintiff also brings a First Amendment retaliation claim against John Doe 3. 21 Plaintiff brings a claim against defendant Jane Doe 4 for violating his due process rights 22 by giving him unwanted medical treatment. Plaintiff alleges she also inflicted excessive force 23 by forcing things in Plaintiff’s mouth and ignoring Plaintiff’s pleas of help for his pain. She 24 also used Narcan on Plaintiff while he was fully subdued. 25 Plaintiff brings claims against defendant Keyfauver for violating his rights under the 26 First Amendment to freedom of expression, his rights under the Fourteenth Amendment to 27 equal protection, and his rights under Fourteenth Amendment to due process. Plaintiff also 28 brings a claim alleging that defendant Keyfauver conspired with the correctional officer 1 defendants to prevent any information regarding the May 6 incident from getting to 2 Sacramento. Plaintiff also brings an Eighth Amendment failure to protect claim against 3 defendant Keyfauver. 4 III. ANALYSIS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 5 A. Section 1983 6 The Civil Rights Act under which this action was filed provides: 7 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes 8 to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 9 secured by the Constitution and laws, shall be liable to the party injured in an 10 action at law, suit in equity, or other proper proceeding for redress.... 11 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 12 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 13 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 14 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 15 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 16 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 17 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 18 under color of state law, and (2) the defendant deprived him of rights secured by the 19 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 20 2006); see also Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 21 “under color of state law”). A person deprives another of a constitutional right, “within the 22 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 23 omits to perform an act which he is legally required to do that causes the deprivation of which 24 complaint is made.’” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 25 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 26 causal connection may be established when an official sets in motion a ‘series of acts by others 27 which the actor knows or reasonably should know would cause others to inflict’ constitutional 28 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 1 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 2 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 3 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 4 A plaintiff must demonstrate that each named defendant personally participated in the 5 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 6 connection or link between the actions of the defendants and the deprivation alleged to have 7 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 8 658, 691, 695 (1978). 9 Supervisory personnel are not liable under section 1983 for the actions of their 10 employees under a theory of respondeat superior and, therefore, when a named defendant 11 holds a supervisory position, the causal link between the supervisory defendant and the claimed 12 constitutional violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. 13 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 14 1978). To state a claim for relief under section 1983 based on a theory of supervisory liability, 15 a plaintiff must allege some facts that would support a claim that the supervisory defendants 16 either: were personally involved in the alleged deprivation of constitutional rights, Hansen v. 17 Black, 885 F.2d 642, 646 (9th Cir. 1989); “knew of the violations and failed to act to prevent 18 them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); or promulgated or “implement[ed] 19 a policy so deficient that the policy itself is a repudiation of constitutional rights and is the 20 moving force of the constitutional violation,” Hansen, 885 F.2d at 646 (citations and internal 21 quotation marks omitted). 22 For instance, a supervisor may be liable for his or her “own culpable action or inaction 23 in the training, supervision, or control of his [or her] subordinates,” “his [or her] acquiescence 24 in the constitutional deprivations of which the complaint is made,” or “conduct that showed a 25 reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 26 630, 646 (9th Cir. 1991) (citations, internal quotation marks, and brackets omitted). 27 \\\ 28 \\\ 1 B. Excessive Force in Violation of the Eighth Amendment 2 “In its prohibition of ‘cruel and unusual punishments,’ the Eighth Amendment places 3 restraints on prison officials, who may not … use excessive physical force against prisoners.” 4 Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[W]henever prison officials stand accused of 5 using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry 6 is … whether force was applied in a good-faith effort to maintain or restore discipline, or 7 maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). 8 When determining whether the force was excessive, the Court looks to the “extent of 9 injury suffered by an inmate…, the need for application of force, the relationship between that 10 need and the amount of force used, the threat ‘reasonably perceived by the responsible 11 officials,’ and ‘any efforts made to temper the severity of a forceful response.’” Hudson, 503 12 U.S. at 7 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). While de minimis uses of 13 physical force generally do not implicate the Eighth Amendment, significant injury need not be 14 evident in the context of an excessive force claim, because “[w]hen prison officials maliciously 15 and sadistically use force to cause harm, contemporary standards of decency always are 16 violated.” Hudson, 503 U.S. at 9. 17 Unduly tight handcuffing can constitute excessive force. “In general, in cases where 18 tight handcuffing was found to constitute excessive force, the plaintiff was in visible pain, 19 repeatedly asked the defendant to remove or loosen the handcuffs, had pre-existing injuries 20 known to the defendant, or alleged other forms of abusive conduct by the defendant.” Reviere 21 v. Phillips, 2014 WL 711002, at *6 (E.D. Cal. Feb. 21, 2014) (citing Shaw v. City of Redondo 22 Beach, 2005 WL 6117549, at *7 (C.D. Cal. Aug. 23, 2005)). 23 Plaintiff alleges that, on May 6, 2021, after he attempted to adjust something that was 24 put in or over his mouth, John Doe 3 grabbed Plaintiff’s hand and twisted his arm and wrist. 25 Then defendant Nunez-Ruiz or Calvo grabbed Plaintiff’s other arm. One of these defendants 26 slammed Plaintiff’s face on the table. Plaintiff was handcuffed to the tightest capacity, with his 27 wrist bent and in pain. 28 Plaintiff alleges that he complied with orders and sat on the orange board. However, he 1 was in pain, and yelled, “what the fuck.” Defendant Jane Doe 4 told Plaintiff that “he has to 2 lay down,” and defendants Nunez-Ruiz, Calvo, and John Doe 3 forced Plaintiff to lay on his 3 handcuffed hands. Plaintiff yelled “my hands,” but he was ignored. 4 Plaintiff was escorted out of the building. Plaintiff told staff, “I can’t feel my hands, 5 what the fuck.” Defendants Nunez-Ruiz, Calvo, and John Doe 3 laughed. 6 Liberally construing the allegations in Plaintiff’s complaint, the Court finds that 7 Plaintiff’s excessive force claim against defendants Nunez-Ruiz, Calvo, John Doe 3, and Jane 8 Doe 4 should proceed past screening. 9 However, to the extent Plaintiff’s excessive force claim against Jane Doe 4 is based on 10 providing Plaintiff with medical care (such as putting “something” on or in his mouth), the 11 Court finds that Plaintiff fails to state a claim. Plaintiff does not sufficiently describe the force 12 that was allegedly used. Moreover, Plaintiff fails to sufficiently allege that the force was used 13 maliciously and sadistically to cause harm, as opposed to a good faith effort to provide medical 14 care. 15 C. Failure to Protect in Violation of the Eighth Amendment 16 To establish a failure to protect claim, a prisoner must establish that prison officials 17 were deliberately indifferent to a sufficiently serious threat to the prisoner’s safety. Farmer v. 18 Brennan, 511 U.S. 825, 837 (1994). “‘Deliberate indifference’ has both subjective and 19 objective components.” Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013). 20 A prisoner must show that “the official [knew] of and disregard[ed] an excessive risk to inmate 21 ... safety; the official must both be aware of facts from which the inference could be drawn that 22 a substantial risk of serious harm exists, and [the official] must also draw the inference.” 23 Farmer, 511 U.S. at 837. “Liability may follow only if a prison official ‘knows that inmates 24 face a substantial risk of serious harm and disregards that risk by failing to take reasonable 25 measures to abate it.’” Labatad, 714 F.3d at 1160 (quoting Farmer, 511 U.S. at 847). 26 Plaintiff brings a failure to protect claim against defendants Nunez-Ruiz and John Doe 3 27 based on the May 6, 2021 incident. As these defendants were present for the excessive force 28 incident described above and witnessed each other’s and defendant Calvo’s use of force but did 1 not take any steps to abate the risk to Plaintiff, the Court finds that Plaintiff’s failure to protect 2 claim against defendants Nunez-Ruiz and John Doe 3 should proceed past screening. 3 Plaintiff also brings a failure to protect claim against defendant Keyfauver. This claim 4 appears to be based on the theory that if defendant Keyfauver had properly processed Plaintiff’s 5 602 appeals, it would have deterred the type of activity that occurred on May 6 and could have 6 prevented the incident. 7 The Court finds Plaintiff fails to state a failure to protect claim against defendant 8 Keyfauver because his allegations are conclusory. Plaintiff fails to sufficiently allege that 9 failure to process the 602 appeals subjected Plaintiff to a serious risk of harm. Notably, while 10 Plaintiff alleges that he submitted 602 appeals prior to the May 6 incident, there are no 11 allegations suggesting that the appeals involved defendants Nunez-Ruiz, Calvo, John Doe 3, or 12 Jane Doe 4. Moreover, even if the failure to process Plaintiff’s 602 appeals did subject Plaintiff 13 to a serious risk of harm, there are no allegations suggesting that defendant Keyfauver was 14 aware of the serious risk of harm.3 15 D. Retaliation 16 There are five basic elements to a First Amendment retaliation claim: “(1) An assertion 17 that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s 18 protected conduct, and that such action (4) chilled the inmate’s exercise of his First 19 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional 20 goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 21 “‘[A] plaintiff who fails to allege a chilling effect may still state a claim if he alleges he 22 suffered some other harm,’ Brodheim, 584 F.3d at 1269, that is ‘more than minimal,’ Robinson, 23 408 F.3d at 568 n.11. That the retaliatory conduct did not chill the plaintiff from suing the 24 alleged retaliator does not defeat the retaliation claim at the motion to dismiss stage. Id. at 25 569.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (alteration in original). 26 27 28 3 The Court notes that Plaintiff does not bring a failure to protect claim against defendant Calvo or defendant Jane Doe 4. 1 While prisoners have no freestanding right to a prison grievance process, see Ramirez v. 2 Galaza, 334 F.3d 850, 860 (9th Cir. 2003), “a prisoner’s fundamental right of access to the 3 courts hinges on his ability to access the prison grievance system,” Bradley v. Hall, 64 F.3d 4 1276, 1279 (9th Cir. 1995), overruled on other grounds by Shaw v. Murphy, 532 U.S. 223, 230 5 n.2 (2001). Because filing administrative grievances and initiating civil litigation are protected 6 activities, it is impermissible for prison officials to retaliate against prisoners for engaging in 7 these activities. Rhodes, 408 F.3d at 567. 8 Plaintiff alleges that he filed numerous grievances and that Defendants took adverse 9 actions against him. However, Plaintiff fails to sufficiently connect the adverse actions to his 10 protected conduct. There are no allegations, such as anything a defendant did or said, that 11 would suggest he or she acted in retaliation for Plaintiff filing grievances. Moreover, based on 12 Plaintiff’s allegations, at least one defendant may have taken adverse actions against Plaintiff 13 because Plaintiff previously fought with a correctional officer, which is not protected conduct. 14 See, e.g., Marvellous Afrikan Warrior Greene v. Brandon Price, 2018 WL 1413088, at *2 (E.D. 15 Cal. Mar. 21, 2018) (“Plaintiff’s allegations thus establish that he was let go from his job 16 because of a fight. This is not protected conduct and does not establish a retaliation claim in 17 violation of the Constitution.”); Garcia v. Nuno, 2015 WL 13738291, at *13 (S.D. Cal. Aug. 18 17, 2015) (“Defendants contend Plaintiff fails to state a retaliation claim because fighting is not 19 protected conduct. This Court agrees.”) (citation omitted). 20 Accordingly, the Court finds that Plaintiff fails to state a retaliation claim against any 21 defendant. 22 E. Unwanted Medical Treatment 23 “[A] competent person has a constitutionally protected liberty interest in refusing 24 unwanted medical treatment….” Cruzan by Cruzan v. Dir., Mo. Dept. of Health, 497 U.S. 261, 25 278 (1990). However, “determining that a person has a ‘liberty interest’ under the Due Process 26 Clause does not end the inquiry; ‘whether [a plaintiff’s] constitutional rights have been violated 27 must be determined by balancing his liberty interests against the relevant state interests.’” 28 Cruzan, 497 U.S. 261, 279 (1990) (footnote omitted) (quoting Youngberg v. Romeo, 457 U.S. 1 307, 321 (1982). Specifically, the Court must consider “the need for the governmental action 2 in question, the relationship between the need and the action, the extent of harm inflicted, and 3 whether the action was taken in good faith or for the purpose of causing harm.” Plumeau v. 4 Sch. Dist. No. 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (citation omitted); see 5 also Jacobson v. Massachusetts, 197 U.S. 11 (1905) (where the Supreme Court balanced an 6 individual’s liberty interest in declining an unwanted smallpox vaccine against the State’s 7 interest in preventing the disease). In the prison context, “[p]rison administrators have not only 8 an interest in ensuring the safety of prison staff and administrative personnel, but also the duty 9 to take reasonable measures for the prisoners’ own safety.” Washington v. Harper, 494 U.S. 10 210, 225 (1990) (citation omitted). 11 Plaintiff brings a claim against defendant Jane Doe 4 for unwanted medical treatment in 12 violation of the Fourteenth Amendment. Based on Plaintiff’s allegations, Plaintiff was 13 coherent and told defendant Jane Doe 4 that he was “good” more than once. However, 14 defendant Jane Doe 4 was persistent even after Plaintiff’s refusal and tried to put something in 15 or over Plaintiff’s mouth. Plaintiff moved his head backward but still “received it.” Plaintiff 16 also alleges that she used Narcan on Plaintiff while he was fully subdued. 17 Liberally construing Plaintiff’s complaint, the Court finds that Plaintiff’s claim against 18 defendant Jane Doe 4 for unwanted medical treatment in violation of the Fourteenth 19 Amendment should proceed past screening. 20 It is not clear, but Plaintiff may also bring this claim against defendant Nunez-Ruiz. To 21 the extent that he is, the Court finds that the claim fails because Plaintiff fails to sufficiently 22 link defendant Nunez-Ruiz to the alleged constitutional deprivation. There are no allegations 23 suggesting that defendant Nunez-Ruiz, a correctional officer, provided any medical treatment 24 to Plaintiff or directed Jane Doe 4 to provide any medical treatment to Plaintiff. Plaintiff also 25 fails to sufficiently allege that defendant Nunez-Ruiz attempted or intended to have Plaintiff 26 provided with unwanted medical treatment. 27 \\\ 28 \\\ 1 F. Rules Violation Reports and Procedural Due Process 2 The Due Process Clause of the Fourteenth Amendment protects prisoners from being 3 deprived of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 4 539, 556 (1974). The procedural guarantees of the Fifth and Fourteenth Amendments’ Due 5 Process Clauses apply only when a constitutionally protected liberty or property interest is at 6 stake. Ingraham v. Wright, 430 U.S. 651, 672-73 (1977). 7 The United States Supreme Court, in a case involving a disciplinary proceeding that 8 resulted in a punishment of thirty days in solitary confinement, held that while States may 9 create liberty interests, “these interests will be generally limited to freedom from restraint 10 which, while not exceeding the sentence in such an unexpected manner as to give rise to 11 protection by the Due Process Clause of its own force, see, e.g., Vitek, 445 U.S., at 493, 100 12 S.Ct., at 1263–1264 (transfer to mental hospital), and Washington, 494 U.S., at 221–222, 110 13 S.Ct., at 1036–1037 (involuntary administration of psychotropic drugs), nonetheless imposes 14 atypical and significant hardship on the inmate in relation to the ordinary incidents of prison 15 life.” Sandin v. Conner, 515 U.S. 472, 483-84 (1995). In Sandin the Supreme Court held that 16 neither thirty days in solitary confinement nor issuance of a Rules Violation Report that could 17 be used in parole proceedings were substantial enough deprivations of liberty interests to 18 trigger procedural due process protections. 19 Even if a liberty interest is at stake, “[p]rison disciplinary proceedings are not part of a 20 criminal prosecution, and the full panoply of rights due a defendant in such proceedings does 21 not apply.” Wolff, 418 U.S. at 556. Wolff established five constitutionally mandated 22 procedural requirements for disciplinary proceedings. First, “written notice of the charges must 23 be given to the disciplinary-action defendant in order to inform him of the charges and to 24 enable him to marshal the facts and prepare a defense.” Id. at 564. Second, “at least a brief 25 period of time after the notice, no less than 24 hours, should be allowed to the inmate to prepare 26 for the appearance before the [disciplinary committee].” Id. Third, “there must be a ‘written 27 statement by the factfinders as to the evidence relied on and reasons’ for the disciplinary 28 action.” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). Fourth, “the inmate 1 facing disciplinary proceedings should be allowed to call witnesses and present documentary 2 evidence in his defense when permitting him to do so will not be unduly hazardous to 3 institutional safety or correctional goals.” Id. at 566. And fifth, “[w]here an illiterate inmate is 4 involved [or] the complexity of the issue makes it unlikely that the inmate will be able to 5 collect and present the evidence necessary for an adequate comprehension of the case, he 6 should be free to seek the aid of a fellow inmate, or … to have adequate substitute aid … from 7 the staff or from a[n] … inmate designated by the staff.” Id. at 570. 8 Plaintiff alleges that defendant Calvo violated Plaintiff’s procedural due process rights 9 when he served Plaintiff with the Rules Violation Report. However, Plaintiff fails to 10 sufficiently allege that he had a state created liberty interest at stake. Plaintiff alleges that 11 defendant Calvo violated California Code of Regulations Title 15, but Plaintiff does not 12 identity the specific regulation at issue or allege what it states. Moreover, Plaintiff fails to 13 allege that he suffered any negative consequences because defendant Calvo served the report, 14 and thus fails to allege that he suffered an atypical and significant hardship. The Court notes 15 that Plaintiff alleges that the Rules Violation Report was ultimately dismissed. 16 Accordingly, the Court finds that Plaintiff fails to state a procedural due process claim 17 against defendant Calvo. 18 G. False Rules Violation Reports 19 The filing of a false Rules Violation Report by a prison official against a prisoner is not 20 a per se violation of the prisoner’s constitutional rights. See Muhammad v. Rubia, 2010 WL 21 1260425, at *3 (N.D. Cal., Mar. 29, 2010), aff’d, 453 Fed. App’x 751 (9th Cir. 2011) (“[A] 22 prisoner has no constitutionally guaranteed immunity from being falsely or wrongly accused of 23 conduct which may result in the deprivation of a protected liberty interest. As long as a 24 prisoner is afforded procedural due process in the disciplinary hearing, allegations of a 25 fabricated charge fail to state a claim under § 1983.”) (citations omitted); Harper v. Costa, 2009 26 WL 1684599, at *2-3 (E.D. Cal., June 16, 2009), aff’d, 393 Fed. App’x 488 (9th Cir. 2010) 27 (“Although the Ninth Circuit has not directly addressed this issue in a published opinion, 28 district courts throughout California … have determined that a prisoner’s allegation that prison 1 officials issued a false disciplinary charge against him fails to state a cognizable claim for relief 2 under § 1983.”). 3 There are, however, two ways that allegations that an inmate has been subjected to 4 a false disciplinary report can state a cognizable civil rights claim: (1) when the prisoner alleges 5 that the false disciplinary report was filed in retaliation for his exercise of a constitutional right; 6 and (2) when the prisoner alleges that he was not afforded procedural due process in a 7 disciplinary proceeding concerning the false report. See Hines v. Gomez, 108 F.3d 265, 269 8 (9th Cir. 1997) (“[T]his court has reaffirmed that prisoners may still base retaliation claims on 9 harms that would not raise due process concerns.”); Freeman v. Rideout, 808 F.2d 949, 951 (2d 10 Cir. 1986) (holding that the filing of a false disciplinary charge against a prisoner is not 11 actionable under § 1983 if prison officials provide the prisoner with procedural due process 12 protections); Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984) (“[A]n allegation that a 13 prison guard planted false evidence which implicates an inmate in a disciplinary infraction fails 14 to state a claim for which relief can be granted where the procedural due process protections as 15 required in Wolff v. McDonnell are provided.”). 16 Plaintiff brings a claim against defendant Nunez-Ruiz based on the allegation that he 17 lied on a Rules Violation Report. However, as discussed above, Plaintiff fails to sufficiently 18 allege that any defendant retaliated against him. Plaintiff also fails to sufficiently allege that he 19 was denied the procedural due process protections required by Wolff. Accordingly, the Court 20 finds that Plaintiff fails to state a claim based on the allegation that defendant Nunez-Ruiz lied 21 on a Rules Violation Report. 22 H. Freedom of Expression/Right to Petition 23 The First Amendment provides that Congress shall make no law abridging the right of 24 the people “to petition the Government for a redress of grievances.” U.S. Const. amend. I. The 25 right to petition the government is “cut from the same cloth as the other guarantees” in the First 26 Amendment and is “an assurance of a particular freedom of expression.” McDonald v. Smith, 27 472 U.S. 479, 482 (1985). However, the Petition Clause guarantees only that an individual 28 may “speak freely and petition openly” and that he will be free from retaliation by the 1 government for doing so. Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 2 463, 465 (per curiam). The First Amendment does not guarantee that there will be any 3 government response to a petition or that the government will take any action regarding the 4 relief demanded by the petitioner. Specifically, the First Amendment does not impose an 5 affirmative obligation on the government to consider, respond to, or grant any relief on a 6 citizen’s petition for redress of grievances. Id.; see also Apple v. Glenn, 183 F.3d 477, 479 (6th 7 Cir. 1999) (“A citizen’s right to petition the government does not guarantee a response to the 8 petition or the right to compel government officials to act on or adopt a citizen's views.”); We 9 the People Foundation, Inc. v. United States, 485 F.3d 140, 141 (D.C. Cir. 2007) (“[T]he 10 Petition Clause does not provide a right to a response or official consideration [of a citizen’s 11 grievance].”); Trentadue v. Integrity Committee, 501 F.3d 1215, 1237 (10th Cir. 2007) (“[T]he 12 right to petition confers no attendant right to a response from the government.”); Hilton v. City 13 of Wheeling, 209 F.3d 1005, 1007 (7th Cir. 2000) (“[W]hile the government may not interfere 14 with the right to petition, it need not grant the petition, no matter how meritorious it is.”) 15 (citations omitted). 16 It is not clear, but Plaintiff appears to be bringing a claim against defendant Keyfauver 17 for a violation of his right to petition the government for a redress of grievances, which is “an 18 assurance of a particular freedom of expression.” McDonald, 472 U.S. at 482. 19 There are no allegations suggesting that defendant Keyfauver prevented Plaintiff from 20 filing a 602 appeal. Plaintiff alleges that he did not receive a response to some 602 appeals and 21 that he did not like the response he received to others, but as discussed above, not receiving a 22 response or not liking the response received is insufficient to state a claim for violation of the 23 right to petition the government.4 Additionally, as discussed above, Plaintiff fails to 24 sufficiently allege that any defendant retaliated against him because he filed grievances. 25 Accordingly, the Court finds that Plaintiff fails to state a claim for violation of his First 26
27 4 To the extent Plaintiff complains about defendant Keyfauver not following the proper procedures for 28 processing his 602 appeals, as discussed in more detail below, Plaintiff is not entitled to a specific procedure and does not have a liberty interest in the processing of his 602 appeals. 1 Amendment right to freedom of expression/to petition the government. 2 I. Equal Protection 3 The equal protection clause requires that persons who are similarly situated be treated 4 alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Hartmann 5 v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. 6 Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 7 2008). To state a claim, Plaintiff must show that Defendants intentionally discriminated 8 against him based on his membership in a protected class, Hartmann, 707 F.3d at 1123 9 Furnace, 705 F.3d at 1030, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Thornton 10 v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005), Lee v. City of Los Angeles, 250 11 F.3d 668, 686 (9th Cir. 2001), or that similarly situated individuals were intentionally treated 12 differently without a rational relationship to a legitimate state purpose, Engquist v. Oregon 13 Department of Agr., 553 U.S. 591, 601-02 (2008), Village of Willowbrook v. Olech, 528 U.S. 14 562, 564 (2000), Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008), North 15 Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 16 Inmates are not a protected class. Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir. 17 1998); Veenstra v. Idaho State Bd. of Correction, 785 F. App’x 390, 391 (9th Cir. 2019). 18 Plaintiff alleges that defendant Keyfauver violated his equal protection rights because 19 he did not properly process Plaintiff’s 602 appeals. However, Plaintiff fails to sufficiently 20 allege that defendant Keyfauver intentionally discriminated against him based on his 21 membership in a protected class, or that Plaintiff was intentionally treated differently than 22 similarly situated individuals without a rational relationship to a legitimate state purpose. 23 Accordingly, the Court finds that Plaintiff fails to state an equal protection claim against 24 defendant Keyfauver. 25 J. Processing of Appeals/Grievances 26 “[A prison] grievance procedure is a procedural right only, it does not confer any 27 substantive right upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) 28 (alteration in original) (quoting Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see 1 also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of 2 appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 3 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on 4 prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). “Hence, it does not give rise to a 5 protected liberty interest requiring the procedural protections envisioned by the Fourteenth 6 Amendment.” Azeez, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 7 1986). 8 Plaintiff alleges that defendant Keyfauver violated his due process rights because he did 9 not properly process Plaintiff’s 602 appeals. As Plaintiff does not have a liberty interest in the 10 processing of his 602 appeals, the Court finds that Plaintiff fails to state a claim based on his 11 allegations that his 602 appeals were not properly processed.5 12 K. Conspiracy 13 To state a claim for conspiracy under section 1983, Plaintiff must show the existence of 14 an agreement or meeting of the minds to violate constitutional rights, Avalos v. Baca, 596 F.3d 15 583, 592 (9th Cir. 2010); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001), and that an 16 “actual deprivation of his constitutional rights resulted from the alleged conspiracy,” Hart v. 17 Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. Woodward County, 18 Oklahoma, 866 F.2d 1121, 1126 (9th Cir. 1989)). “‘To be liable, each participant in the 19 conspiracy need not know the exact details of the plan, but each participant must at least share 20 the common objective of the conspiracy.’” Franklin, 312 F.3d at 441 (quoting United 21 Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1541 (9th Cir.1989)). 22 Additionally, Plaintiff must show that Defendants “conspired or acted jointly in concert and 23 that some overt act [was] done in furtherance of the conspiracy.” Sykes v. State of California, 24 497 F.2d 197, 200 (9th Cir. 1974). “[M]ore than vague conclusory allegations are required to 25 state a [conspiracy] claim.” Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 26 Plaintiff alleges that defendant Keyfauver conspired with defendants Nunez-Ruiz, 27 28 5 However, a failure to correctly process Plaintiff’s 602 appeals may be relevant and admissible to the extent Defendants rely on a defense of non-exhaustion. 1 Calvo, and John Doe 3 to prevent any information regarding the May 6 incident from getting to 2 Sacramento. However, at most, Plaintiff provides vague and conclusory allegations. 3 Accordingly, the Court finds that Plaintiff fails to state a conspiracy claim. 4 IV. CONCLUSION, RECOMMENDATIONS, AND ORDER 5 The Court has screened the First Amended Complaint and finds that this action should 6 proceed on the following claims: Plaintiff’s Eighth Amendment excessive force claim against 7 defendants Nunez-Ruiz, Calvo, John Doe 3 (a Correctional Officer), and Jane Doe 4 (a Nurse); 8 Plaintiff’s Eighth Amendment failure to protect claim against defendants Nunez-Ruiz and John 9 Doe 3 (a Correctional Officer); and Plaintiff’s claim for unwanted medical treatment in 10 violation of the Fourteenth Amendment against defendant Jane Doe 4 (a Nurse). The Court 11 also finds that all other claims and defendants should be dismissed. 12 The Court will not recommend that further leave to amend be granted. In the Court’s 13 prior screening order, the Court identified deficiencies in Plaintiff’s complaint, provided 14 Plaintiff with relevant legal standards, and provided Plaintiff with an opportunity to amend his 15 complaint. Plaintiff filed his First Amended Complaint with the benefit of the Court’s 16 screening order. While Plaintiff cured some of the deficiencies identified by the Court, it 17 appears that further leave to amend would be futile. 18 Accordingly, based on the foregoing, the Court HEREBY RECOMMENDS that: 19 1. This case proceed on Plaintiff’s Eighth Amendment excessive force claim 20 against defendants Nunez-Ruiz, Calvo, John Doe 3 (a Correctional Officer), and 21 Jane Doe 4 (a Nurse); Plaintiff’s Eighth Amendment failure to protect claim 22 against defendants Nunez-Ruiz and John Doe 3 (a Correctional Officer); and 23 Plaintiff’s claim for unwanted medical treatment in violation of the Fourteenth 24 Amendment against defendant Jane Doe 4 (a Nurse); and 25 2. All other claims be dismissed for failure to state a claim. 26 These findings and recommendations will be submitted to the United States district 27 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 28 twenty-one (21) days after being served with these findings and recommendations, Plaintiff 1 || may file written objections with the Court. The document should be captioned “Objections to 2 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 3 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 4 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 5 || (9th Cir. 1991)). 6 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 7 || judge to this case. 8 9 IT IS SO ORDERED. 10 | Dated: _ September 14, 2022 [Je heey — 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23