(PC) Spencer v. Pulido-Esparza

• Court: District Court, E.D. California
• Decided: April 7, 2023
• Docket: 1:20-cv-01176
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 EDWARD B. SPENCER, 1:20-cv-001176-GSA-PC 12 Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT 13 v. JUDGE TO THIS CASE

14 PULIDO-ESPARZA, et al., AND

15 Defenda nts. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE 16 PROCEED ONLY AGAINST DEFENDANT CDCR FOR VIOLATION OF THE ADA; 17 THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED FOR 18 FAILURE TO STATE A CLAIM, WITHOUT LEAVE TO AMEND 19 (ECF No. 13.)

20 OBJECTIONS, IF ANY, DUE BY APRIL 20, 2023 21

23 24 I. BACKGROUND 25 Edward B. Spencer (“Plaintiff”) is a state prisoner proceeding pro se and in forma 26 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983 and Title II of the Americans 27 with Disabilities Act (ADA), 42 U.S.C. § 12132 (1994). On August 20, 2020, Plaintiff filed the 28 Complaint commencing this action. (ECF No. 1.) On November 5, 2021, the Court screened the 1 Complaint and dismissed it for failure to state a claim, with leave to amend. (ECF No. 10.) On 2 December 21, 2021, Plaintiff filed the First Amended Complaint, which is now before the Court 3 for screening. 28 U.S.C. § 1915. (ECF No. 13.) 4 II. SCREENING REQUIREMENT 5 The court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 10 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 11 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 12 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 13 A complaint is required to contain “a short and plain statement of the claim showing that 14 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 15 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 17 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 18 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 19 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 20 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 21 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 22 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 23 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 24 plausibility standard. Id. 25 III. SUMMARY OF FIRST AMENDED COMPLAINT 26 Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility 27 and State Prison (SATF) in Corcoran, California, in the custody of the California Department of 28 Corrections and Rehabilitation (CDCR). The events at issue in the First Amended Complaint 1 allegedly occurred at SATF. Plaintiff names as defendants Correctional Officer L. Pulido- 2 Esparza, Lieutenant C. Smith (Hearing Officer), Stuart Sherman (Warden), and CDCR 3 (collectively, “Defendants”). Plaintiff sues Defendants Pulido-Esparza, Smith, and Sherman in 4 their individual capacities and Defendant CDCR in its official and individual capacities. 5 A summary of Plaintiff’s allegations follows: 6 The gravamen of Plaintiff’s Complaint is that Defendants forced him to stand up during 7 inmate institutional counts until counted by the officer taking count, while Plaintiff was having 8 severe cramps and in excruciating pain, rather than allowing him to sit on his assigned bed or in 9 a wheelchair during count. Plaintiff alleges he is a qualified individual with a disability and is 10 designated an intermittent wheelchair user who needs a wheelchair outside of his cell, but does 11 not qualify to sit (and must stand) while inside his cell during inmate count (DPO). While on the 12 other hand, a DPW is a full-time wheelchair user who requires a wheelchair accessible cell. 13 Plaintiff alleges that Defendants discriminated against Plaintiff for being a DPO and not a DPW 14 who are allowed to sit inside their cells during count. 15 IV. PLAINTIFF’S CLAIMS 16 A. AMERICANS WITH DISABILITIES ACT (ADA) CLAIM 17 Title II of the Americans with Disabilities Act prohibits a public entity from 18 discriminating against a qualified individual with a disability on the basis of disability. 42 U.S.C. 19 § 12132 (1994); Weinrich v. L.A. County Metro Transp. Auth., 114 F.3d 976, 978 (9th Cir.), 20 cert. denied, 522 U.S. 971 (1997). The Supreme Court has held that Title II of the ADA applies 21 to state prisons. Pennsylvania Dept. of Corr. v. Yeskey, 524 U.S. 206, 210 (1998); see also Lee 22 v. City of L.A., 250 F.3d 668, 691 (9th Cir. 2001). Furthermore, “there is no question that 23 defendant CDCR, as a ‘department [or] agency . . . of a State’ is a ‘public entity’ for purposes of 24 the ADA, 42 U.S.C. § 12131(1).” Jones v. Scotland, No. 2:12-CV-00633 TLN, 2015 WL 25 461633, at *4 (E.D. Cal. Feb. 3, 2015), report and recommendation adopted, No. 2:12-CV-0633 26 TLN DAD, 2015 WL 1347412 (E.D. Cal. Mar. 23, 2015). “Generally, public entities must 27 ‘make reasonable modification in policies, practices, or procedures when the modifications are 28 necessary to avoid discrimination on the basis of disability, unless the public entity can 1 demonstrate that making the modifications would fundamentally alter the nature of the service, 2 program, or activity.’” Pierce v. County of Orange, 526 F.3d 1190, 1215 (9th Cir. 2008) (quoting 3 28 C.F.R. § 35.130(b)(7)). 4 To state a claim under Title II of the ADA, the plaintiff must allege four elements: (1) the 5 plaintiff is an individual with a disability; (2) the plaintiff is otherwise qualified to participate in 6 or receive the benefit of some public entity’s services, programs, or activities; (3) the plaintiff 7 was either excluded from participation in or denied the benefits by the public entity; and (4) such 8 exclusion, denial of benefits or discrimination was by reason of the plaintiff’s disability. 9 Simmons v. Navajo County, Ariz, 609 F.3d 1011, 1021 (9th Cir. 2010); McGary v. City of 10 Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (policy burdened plaintiff in a manner different 11 from and greater than it burdened non-disabled residents, solely as a result of his disabling 12 condition); Weinrich, 114 F.3d at 978. 13 The proper defendant in an ADA action is the public entity responsible for the alleged 14 discrimination. United States v. Georgia, 546 U.S. 151, 153 (2006). State correctional facilities 15 are “public entities” within the meaning of the ADA. See 42 U.S.C. § 12131(1)(A) & (B); 16 Pennsylvania Dept. of Corrections, 524 U.S. at 210; Armstrong v. Wilson, 124 F.3d 1019, 1025 17 (9th Cir. 1997). However, a state official sued in his/her official capacity is, in effect, a suit 18 against the government entity and is an appropriate defendant in an ADA action. See Applegate 19 v. CCI, No. 1:16–cv–1343 MJS (PC), 2016 WL 7491635, at *5 (E.D. Cal. Dec. 29, 2016) (citing 20 Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187–88 (9th Cir. 2003); Kentucky v. Graham, 473 21 U.S. 159, 165 (1985)). 22 Ordinarily, a plaintiff is not entitled to monetary damages against defendants in their 23 official capacities. Aholelei v. Dept. of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (“The 24 Eleventh Amendment bars suits for money damages in federal court against a state, its agencies, 25 and state officials in their official capacities”). However, the Eleventh Amendment does not bar 26 ADA or RA (Rehabilitation Act of 1973; 29 U.S.C. § 701, et seq.) suits against state officials in 27 their official capacities for injunctive relief or damages. See Phiffer v. Columbia River Corr. 28 Inst., 384 F.3d 791, 792–93 (9th Cir. 2004). 1 2 Furthermore, “[t]o recover monetary damages under Title II of the ADA, a plaintiff must 3 prove intentional discrimination on the part of the defendant.” Duvall v. County of Kitsap, 260 4 F.3d 1124, 1138 (9th Cir. 2001). The standard for intentional discrimination is deliberate 5 indifference, “which requires both knowledge that a harm to a federally protected right is 6 substantially likely, and a failure to act upon that likelihood.” Id. at 1139. The ADA plaintiff 7 must both “identify ‘specific reasonable’ and ‘necessary’ accommodations that the state failed to 8 provide” and show that the defendant’s failure to act was “a result of conduct that is more than 9 negligent, and involves an element of deliberateness.” Id. at 1140. When the plaintiff has alerted 10 the public entity to his need for accommodation (or where the need for accommodation is 11 obvious, or required by statute or regulation), the public entity is on notice that an 12 accommodation is required, and the plaintiff has satisfied the first element of the deliberate 13 indifference test. Id. at 1139. 14 Although “[t]he ADA prohibits discrimination because of disability,” it does not provide 15 a remedy for “inadequate treatment for disability.” Simmons, 609 F.3d at 1022 (citing Bryant v. 16 Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“[T]he Act would not be violated by a prison for 17 simply failing to attend to the medical needs of its disabled prisoners. . . . The ADA does not 18 create a remedy for medical malpractice.”)). 19 The ADA, as amended in 2008, defines a disability, with respect to an individual, as “a 20 physical or mental impairment that substantially limits one or more major life activities of such 21 an individual.” Id. (quoting 42 U.S.C. § 12102(1)(A)). 22 Discussion 23 Plaintiff alleges that he experiences severe cramps due to elevated creatine kinase1 and is 24 classified as a DPO (intermittent wheelchair user) at the prison. (First Amended Complaint 25 (FAC), ECF No. 13 at ¶¶ 6, 13, 18.) This allegation satisfies the first requirement to state an 26 ADA claim (the plaintiff is an individual with a disability). 27 28 1 Creatine kinase is an enzyme. See https://www.mayocliniclabs.com/test- catalog/Clinical+and+Interpretive/8336 (last visited October 29, 2021) 1 Plaintiff is able to stand up as required during the facility’s Institutional Count, except 2 when he is experiencing severe cramps. (FAC at ¶ 15.) This allegation satisfies the second 3 requirement to state an ADA claim (the plaintiff is otherwise qualified to participate in or receive 4 the benefit of some public entity’s services, programs, or activities). 5 Plaintiff alleges that he was denied the option of sitting down during the Institutional 6 Count, denying him the ability to participate in the count. Plaintiff alleges that on December 29, 7 2019, he filed an 1824 (form) requesting to be allowed to sit on his bed or in his wheelchair for 8 count when he has severe cramps and pain. (FAC at ¶ 20.) Plaintiff alleges that although he has 9 several medical equipment accommodations available to him – cane, compression stocking, 10 diabetic supplies/Monitors, eyeglass frames, incontinence supplies, mobility impaired disability 11 vest, non-invasive airways devices, therapeutic shoes, wheelchair, wrist support brace, 12 wheelchair cushion, and wheelchair gloves -- none of these accommodations would have assisted 13 him in standing on the dates that he fell because the cramps are so painful that he has to be seated. 14 (FAC at ¶¶ 15, 16.) The next week, the Reasonable Accommodation Panel (RAP) denied 15 Plaintiff’s request to be allowed to sit. (FAC at ¶ 20.) These allegations satisfy the third 16 requirement (the plaintiff was either excluded from participation in or denied the benefits by the 17 public entity). 18 Plaintiff was denied the ability to participate because his disability caused him to be 19 unable to stand during the Institutional Count during periods when Plaintiff experienced severe 20 cramps. Plaintiff reports that he had fallen to the ground on numerous occasions when having a 21 severe cramp episode. (FAC at ¶ 21.) Also, CC-II N. Peterson [not a defendant] had interviewed 22 Plaintiff and clarified that his severe muscle cramps limit his ability to stand during count. (FAC 23 at ¶ 23.) However, Plaintiff was denied accommodations that would allow him to sit down during 24 institutional count. These allegations satisfy the fourth and last requirement to state an ADA 25 claim (such exclusion, denial of benefits or discrimination was by reason of the plaintiff’s 26 disability). 27 The court finds therefore that Plaintiff has sufficiently alleged a violation of the ADA 28 because CDCR is the public entity responsible for the alleged discrimination by its policy 1 Operational Procedure 403, which states that only DPW (full time wheelchair user) inmates are 2 authorized to sit on their beds during count time -- and therefore Plaintiff, as a DPO inmate, by 3 not being authorized to sit in his cell during the Institutional Count -- is an appropriate Defendant 4 for an ADA claim.2 Therefore, based on the foregoing, the Court finds that Plaintiff states a 5 claim for violation of the ADA against Defendant CDCR. However, since the remaining 6 defendants are being sued only in their individual capacities, they are not proper defendants for 7 an alleged ADA violation. 8 B. CIVIL RIGHTS ACT -- 42 U.S.C. § 1983 9 The Civil Rights Act under which this action was filed provides:

10 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 to 11 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 12 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 13 42 U.S.C. § 1983. 14 15 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 16 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 17 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 18 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 19 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 20 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law 21 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the 22 federal Constitution, Section 1983 offers no redress.” Id. 23 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 24 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution 25 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 26 2 Defendant Sherman (Warden) and Defendant L. Pulido-Esparza are also proper 27 defendants for an ADA claim if sued as state officials in their official capacities. However, Plaintiff sues 28 Defendants Sherman and Pulido-Esparza only in their individual capacities. 1 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 2 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 3 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 4 which he is legally required to do that causes the deprivation of which complaint is made.’” 5 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 6 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 7 established when an official sets in motion a ‘series of acts by others which the actor knows or 8 reasonably should know would cause others to inflict’ constitutional harms.” Id. (quoting 9 Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard 10 ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 11 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th 12 Cir. 2008). 13 B1. Eleventh Amendment – Defendant CDCR 14 The Eleventh Amendment to the U.S. Constitution bars from the federal courts suits 15 against a state by its own citizens, citizens of another state, or citizens or subjects of any foreign 16 state, absent consent to the filing of such suit. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 17 237-38 (1985). Eleventh Amendment immunity also extends to suits against an arm of the state, 18 such as the CDCR and prisons within the CDCR. See Brown v. Cal. Dep’t of Corrs., 554 F.3d 19 747, 752 (9th Cir. 2009) (California Department of Corrections and California Board of Prison 20 Terms entitled to 11th Amendment immunity). 21 Eleventh Amendment immunity also extends to state officials sued in their official 22 capacities. See Kentucky, 473 U.S. at 169-70. Claims for injunctive relief against the individual 23 defendants sued in their official capacity may be pursued, however. See Ex parte Young, 209 24 U.S. 123 (1908) (suit against a state official seeking prospective injunctive relief from 25 unconstitutional state action is not considered an action against the state). Plaintiff seeks 26 damages and injunctive relief in his Complaint. He sues defendant CDCR in its official and 27 individual capacities, and he sues Defendants Pulido-Esparza, Smith, and Sherman in only their 28 individual capacities. 1 Thus, all § 1983 claims against defendant CDCR are barred under the Eleventh 2 Amendment and must therefore be dismissed. (As discussed above, however, CDCR is a 3 proper defendant for Plaintiff’s ADA claims, because the Eleventh Amendment does not 4 bar ADA or RA suits against state officials in their official capacities for injunctive relief 5 or damages.) 6 Plaintiff’s § 1983 claims for injunctive relief may only go forward against individual 7 defendants sued in their official capacities. However, Plaintiff names no individual defendants 8 who are being sued in their official capacities. Therefore, Plaintiff’s § 1983 claims against CDCR 9 must be dismissed, with prejudice. 10 B2. Retaliation 11 Plaintiff alleges that Pulido-Esparza acted against him because he filed grievances and 12 civil lawsuits against prison staff. (FAC, ECF No. 13, at ¶¶ 29, 62.) “Prisoners have a First 13 Amendment right to file grievances [and lawsuits] against prison officials and to be free from 14 retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (citing 15 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a viable 16 claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state 17 actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected 18 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 19 (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 20 408 F.3d 559, 567-68 (9th Cir. 2005). To state a cognizable retaliation claim, Plaintiff must 21 establish a nexus between the retaliatory act and the protected activity. Grenning v. Klemme, 34 22 F.Supp.3d 1144, 1153 (E.D. Wash. 2014). 23 Plaintiff alleges that on December 28, 2019, Defendant Pulido-Esparza issued a Rules 24 Violation Report (RVR) no. 006948533 against Plaintiff for his failure to properly present for 25 count as described in Institutional Procedures. (FAC at ¶¶ 14, 62, 66.) Plaintiff had told 26 Defendant Pulido-Esparza that he was having severe pain cramps and could not stand at that 27 moment in time, and it was obvious that Plaintiff was at risk of falling. (FAC at ¶ 63.) Defendant 28 Pulido-Esparza just asked Plaintiff if he was “DPW,” then walked off, and issued a false RVR 1 against Plaintiff. (FAC at ¶¶ 63, 64, 67.) These allegations are enough to satisfy the first 2 requirement to state a retaliation claim (A state actor took some adverse action against an inmate). 3 Plaintiff also alleges that he had filed grievances and civil lawsuits against prison staff 4 members. (FAC at ¶¶ 29, 62.) “Prisoners have a First Amendment right to file grievances [and 5 lawsuits] against prison officials and to be free from retaliation for doing so.” Watison, 668 F.3d 6 at 1114) (citing Brodheim, 584 F.3d at 1269). This allegation therefore satisfies the third 7 requirement to state a retaliation claim (Plaintiff participated in protected conduct). 8 Plaintiff also satisfies the fourth requirement to state a retaliation claim (the adverse 9 action chilled Plaintiff’s exercise of his First Amendment rights), when he (Plaintiff) alleged that 10 he was reluctant to file other grievances challenging other incidents involving Defendants based 11 on Defendants’ conduct. (FAC at ¶ 32.) 12 Plaintiff also alleges that filing the RVR against him did not reasonably advance a 13 legitimate correctional goal, which is the fifth requirement for stating a retaliation claim. (FAC 14 at ¶ 69.) However, Plaintiff uses conclusory language unsupported by facts. Plaintiff fails to 15 allege facts showing why issuing a RVR against him for violating prison rules did not advance 16 the correctional goal of discouraging further noncompliance with rules and regulations. 17 See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (finding “preserving institutional order 18 and discipline” through disciplinary action that was supported by “some evidence” advances 19 legitimate penological goals). 20 More importantly however, Plaintiff fails to satisfy the second requirement to state a 21 retaliation claim, that Pulido-Esparza acted against him when issuing a false RVR because 22 Plaintiff filed grievances and lawsuits. Plaintiff has not provided a nexus between the alleged 23 retaliatory act (issuance of RVR) and Plaintiff’s filing of grievances and lawsuits. Plaintiff 24 alleges that Defendant Pulido-Esparza knew that Plaintiff was known as a complainer and had 25 filed many grievances, which created a reasonable inference that Defendant Pulido-Esparza filed 26 the RVR charges against Plaintiff with a retaliatory motive. (FAC at ¶ 68.) However, Plaintiff 27 again uses conclusory language without supplying sufficient supportive facts to allege that he 28 was retaliated against because he filed grievances and civil lawsuits. Even if Pulido-Esparza 1 knew that Plaintiff filed grievances, Plaintiff has not factually demonstrated that Pulido- 2 Esparza’s knowledge of Plaintiff’s grievances was the reason for filing an alleged falsified RVR 3 against Plaintiff for failure to appear appropriately at the Institution Count. Plaintiff’s failure to 4 provide the nexus, as required, causes failure of his retaliation claim. Therefore, Plaintiff fails to 5 state a retaliation claim against Defendant Pulido-Esparza, and the claim must be dismissed. 6 B3. Eighth Amendment Claim, Conditions of Confinement 7 The Eighth Amendment protects Plaintiff’s rights against inhumane methods of 8 punishment and inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 9 1045 (9th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970 (1994) and 10 Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392 (1981)) (quotation marks omitted). 11 While conditions of confinement may be, and often are, restrictive and harsh, they must not 12 involve the wanton and unnecessary infliction of pain. Id. (citing Rhodes, 452 U.S. at 347) 13 (quotation marks omitted). Thus, conditions which are devoid of legitimate penological purpose 14 or contrary to evolving standards of decency that mark the progress of a maturing society violate 15 the Eighth Amendment. Id. (quotation marks and citations omitted); Hope v. Pelzer, 536 U.S. 16 730, 737, 122 S.Ct. 2508 (2002); Rhodes, 452 U.S. at 346. Prison officials have a duty to ensure 17 that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal 18 safety, Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quotation marks and citations 19 omitted), but not every injury that a prisoner sustains while in prison represents a constitutional 20 violation, Morgan, 465 F.3d at 1045 (quotation marks omitted). 21 To maintain an Eighth Amendment claim, a prisoner must show that prison officials were 22 deliberately indifferent to a substantial risk of harm to his health or safety. E.g., Farmer, 511 23 U.S. at 847; Thomas v. Ponder, 611 F.3d 1144, 1150-51 (9th Cir. 2010); Foster v. Runnels, 554 24 F.3d 807, 812-14 (9th Cir. 2009); Morgan, 465 F.3d at 1045; Johnson, 217 F.3d at 731; Frost v. 25 Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). The deliberate indifference standard involves an 26 objective and a subjective prong. First, the alleged deprivation must be, in objective terms, 27 “sufficiently serious . . . .” Farmer, 511 U.S. at 834. “[R]outine discomfort inherent in the prison 28 setting” does not rise to the level of a constitutional violation. Johnson, 217 F.3d at 731. Rather, 1 extreme deprivations are required to make out a conditions of confinement claim, and only those 2 deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to 3 form the basis of an Eighth Amendment violation. Farmer, 511 U.S. at 834; Hudson v. 4 McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992). The circumstances, nature, and duration of the 5 deprivations are critical in determining whether the conditions complained of are grave enough 6 to form the basis of a viable Eighth Amendment claim. Johnson, 217 F.3d at 731. Second, the 7 prison official must “know[] of and disregard[] an excessive risk to inmate health or safety . . . .” 8 Farmer, 511 U.S. at 837. Thus, a prison official may be held liable under the Eighth Amendment 9 for denying humane conditions of confinement only if he knows that inmates face a substantial 10 risk of harm and disregards that risk by failing to take reasonable measures to abate it. Id. at 837- 11 45. Mere negligence on the part of the prison official is not sufficient to establish liability, but 12 rather, the official’s conduct must have been wanton. Farmer, 511 U.S. at 835; Frost, 152 F.3d 13 at 1128 14 Here, Plaintiff alleges that Defendant Sherman violated Plaintiff’s Eighth Amendment 15 rights by ignoring the Armstrong Remedial Plan, and that Defendants violated the Eighth 16 Amendment when they ignored Plaintiff’s safety concerns and failed to follow standard 17 procedures (Armstrong Remedial Plan) for addressing potential safety threat/concerns, which 18 include providing an accommodation for sitting during institutional court at 1700 hours. (FAC 19 at ¶¶ 41, 42, 46, 47, 52, 53.). 20 This claim is deficient because Plaintiff uses conclusory allegations when describing how 21 Defendants violated his rights under the Eighth Amendment. Plaintiff fails to allege facts 22 demonstrating that any of the individually named Defendants, by name, personally and 23 consciously knew that Plaintiff was at substantial risk of serious physical injury, yet ignored the 24 known risk, personally acting against Plaintiff or failing to act, and causing him to suffer injury. 25 For instance, Plaintiff states that he reported that he had fallen to the ground when having a severe 26 cramp episode on numerous occasions (FAC at ¶ 21); that N. Peterson interviewed Plaintiff and 27 clarified that his severe muscle cramps limit his ability to stand during count (FAC at ¶ 23); that 28 Plaintiff is troubled that the RAP (Reasonable Accommodation Panel), Defendant Sherman, and 1 headquarters staff all failed to meaningfully consider Plaintiff’s disability-related request (FAC 2 at ¶ 24); and finally, the RAP denied Plaintiff’s request for accommodation (FAC at ¶ 20). These 3 facts demonstrate at most a difference of opinion, but do not demonstrate that defendants acted 4 with deliberate indifference. As to the first prong (objective) of an Eighth Amendment violation, 5 a Plaintiff must demonstrate that the deprivation is sufficiently serious, and as to the second prong 6 (subjective) the Plaintiff must demonstrate that the deprivation occurred with deliberate 7 indifference to the inmate’s health or safety. Foster, 554 F.3d at 812-14. The indifference must 8 go to something substantial, mere indifference or negligence is insufficient. Moreover, a 9 difference of opinion concerning what medical care is appropriate does not amount to deliberate 10 indifference. Shehee v. Nguyen, Case No. 1:14-cv-01154-LJO-MJS(PC) (E.D. Cal. 2018), 2018 11 U.S. Dist. LEXIS 20368 at * 17.) Here, Plaintiff was given DPO status and at his RAP hearing 12 he was denied his request for a further accommodation. Plaintiff merely asserts that the RAP, 13 Sherman and headquarters staff all failed to meaningfully consider Plaintiff’s disability-related 14 request (1AC, #24). Hence, not only has Plaintiff failed to supply facts demonstrating that the 15 defendants acted with deliberate indifference to his medical condition, just as importantly he has 16 failed to show more than a mere difference of opinion as to his requested accommodation. 17 Without more facts showing what each individual defendant specifically knew about the 18 Plaintiff’s cramps due to elevated creatine kinase levels (objective prong), and how this could 19 result in a serious threat of injury to Plaintiff if he were to fall, Plaintiff has not established an 20 Eighth Amendment violation. Moreover, Plaintiff has not demonstrated that any of the named 21 defendants acted with intentional deliberate indifference (subjective prong), and thus the court 22 cannot find that Plaintiff’s rights under the Eighth Amendment were violated by any of the named 23 Defendants. 24 B4. Prison Appeals Process 25 Plaintiff alleges that his prison appeal was denied by Defendant Sherman, violating his 26 rights to due process. (FAC at ¶ 40.) The Due Process Clause protects prisoners from being 27 deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). 28 In order to state a cause of action for deprivation of due process, a plaintiff must first establish 1 the existence of a liberty interest for which the protection is sought. “States may under certain 2 circumstances create liberty interests which are protected by the Due Process Clause.” Sandin 3 v. Conner, 515 U.S. 472, 483-84 (1995). Liberty interests created by state law are generally 4 limited to freedom from restraint which “imposes atypical and significant hardship on the inmate 5 in relation to the ordinary incidents of prison life.” Id. 6 “[I]nmates lack a separate constitutional entitlement to a specific prison grievance 7 procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in 8 processing of appeals because no entitlement to a specific grievance procedure), citing Mann v. 9 Adams, 855 F.2d 639, 640 (9th Cir. 1988). “[A prison] grievance procedure is a procedural right 10 only, it does not confer any substantive right upon the inmates.” Azeez v. DeRobertis, 568 F. 11 Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see 12 also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure 13 confers no liberty interest on prisoner). “Hence, it does not give rise to a protected liberty interest 14 requiring the procedural protections envisioned by the Fourteenth Amendment.” Azeez, 568 F. 15 Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). 16 Actions in reviewing a prisoner’s administrative appeal generally cannot serve as the 17 basis for liability in a section 1983 action.3 Buckley, 997 F.2d at 495. The argument that anyone 18 who knows about a violation of the Constitution, and fails to cure it, has violated the Constitution 19 himself is not correct. “Only persons who cause or participate in the violations are responsible. 20 Ruling against a prisoner on an administrative complaint does not cause or contribute to the 21 violation.” Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir. 2005) accord George v. Smith, 507 22 F.3d 605, 609-10 (7th Cir. 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir. 1999); Vance 23 v. Peters, 97 F.3d 987, 992-93 (7th Cir. 1996).; Haney v. Htay, No. 1:16-CV-00310-AWI-SKO- 24 PC, 2017 WL 698318, at *4–5 (E.D. Cal. Feb. 21, 2017). 25 26

27 3 Although, as discussed above at ¶ 1, a prisoner/plaintiff may state a retaliation claim if 28 he is threatened with adverse action for filing a 602 appeal. 1 Thus, Plaintiff’s allegations that his prison appeal was not properly decided by Defendant 2 Sherman fail to state a cognizable due process claim. 3 B5. Equal Protection - Fourteenth Amendment Violation 4 The Equal Protection Clause requires the State to treat all similarly situated people 5 equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 6 L.Ed.2d 313 (1985). This does not mean, however, that all prisoners must receive identical 7 treatment and resources. See Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972); Ward v. Walsh, 1 F.3d 8 873, 880 (9th Cir. 1993); Allen v. Toombs, 827 F.2d 563, 568–69 (9th Cir. 1987). 9 “To prevail on an Equal Protection claim brought under § 1983, Plaintiff must allege facts 10 plausibly showing that ‘“the defendants acted with an intent or purpose to discriminate against 11 [them] based upon membership in a protected class,’” (citing see Thornton v. City of St. Helens, 12 425 F.3d 1158, 1166 (9th Cir. 2005) (quoting Lee, 250 F.3d at 686), or that similarly situated 13 individuals were intentionally treated differently without a rational relationship to a legitimate 14 state purpose, Engquist v. Oregon Department of Agr., 553 U.S. 591, 601-02, 128 S.Ct. 2146 15 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073 (2000); Lazy Y 16 Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 17 526 F.3d 478, 486 (9th Cir. 2008). 18 “‘[T]he disabled do not constitute a suspect class’ for equal protection purposes.” Lee, 19 250 F.3d at 687 (quoting Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996)). In addition, 20 “neither prisoners nor ‘persons convicted of crimes’ constitute a suspect class for equal protection 21 purposes.” United States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 2011); Glauner v. Miller, 184 22 F.3d 1053, 1054 (9th Cir. 1999) (“[P]risoners are not a suspect class....”); McQueary v. Blodgett, 23 924 F.2d 829, 834-35 (9th Cir. 1991) (“Inmates are not entitled to identical treatment as other 24 inmates merely because they are all inmates.”). 25 Here, Plaintiff alleges that Defendants Sherman and Pulido-Esparza discriminated against 26 him for being a DPO and not a DPW.4 (FAC at ¶ 33, 34.) They refused to allow Plaintiff to sit, 27 28 4 According to Plaintiff’s Complaint, a DPO is qualified individual with a disability who needs a wheelchair outside of his cell but does not require a wheelchair accessible cell, whereas a DPW 1 but allowed DPW to sit during count. (FAC at ¶ 33.) Plaintiff alleges that he was similarly 2 situated to DPW inmates but was treated unequally, without any rational basis (FAC at 34). 3 Plaintiff alleges that Defendant Sherman impermissibly discriminated against Plaintiff because 4 of his DPO handicap. 5 Plaintiff alleges that as an inmate identified as DPO, he is similarly situated to inmates 6 identified as DPW, and DPW inmates are allowed to sit during the prison’s count, whereas DPO 7 inmates are not. (FAC at ¶¶ 34, 45.) Both DPO and DPW inmates are disabled and use 8 wheelchairs to ambulate. Thus, Plaintiff alleges that he was intentionally treated differently than 9 other similarly situated inmates without a rational relationship to a legitimate state purpose. 10 However, to succeed on an equal protection claim, a prisoner must show that officials 11 intentionally acted in a discriminatory manner. More v. Farrier, 984 F.2d 269, 271-72 (8th Cir. 12 1993) (holding federal courts, absent evidence of invidious discrimination, should defer to 13 judgment of prison officials); Village of Arlington Heights, 429 U.S. at 264-66 (Claims brought 14 under any theory must satisfy the intent requirement, that is, the plaintiff must show that some 15 discriminatory purpose underlies the policy.). Here, there are no facts in the complaint that show 16 discriminatory intent on the part of defendants. Plaintiff alleges that when he was denied his 17 request for an accommodation, it was RAP, Defendant Sherman, and “headquarters staff” who 18 failed him by not meaningfully considering his request (FAC at ¶ 24), and that Defendant 19 Sherman did not substantively address Plaintiff’s report that he has fallen absent the requested 20 accommodations (FAC at ¶ 41). Plaintiff fails to allege facts showing that any of the Defendants 21 intentionally discriminated against Plaintiff because of his DPO status. 22 Therefore, the Court finds that Plaintiff fails to state a claim for violation of Plaintiff’s 23 rights to equal protection. 24 B6. Due Process – RVR Hearing – False Report and Forfeiture of Credits 25 The Due Process Clause protects against the deprivation of liberty without due process 26 of law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 2393 (2005). In order to invoke 27 28 is a full-time wheelchair user who requires a wheelchair accessible cell. (ECF No. 13 at ¶ 6.) 1 the protection of the Due Process Clause, a plaintiff must first establish the existence of a liberty 2 interest for which the protection is sought. Id. Liberty interests may arise from the Due Process 3 Clause itself or from state law. Id. 4 Under state law, the existence of a liberty interest created by prison regulations is 5 determined by focusing on the nature of the deprivation. Sandin, 515 U.S. at 481-84. Liberty 6 interests created by state law are “generally limited to freedom from restraint which . . . imposes 7 atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 8 Id. at 484; Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007). Prison disciplinary proceedings 9 are not part of a criminal prosecution, and the full panoply of rights due a defendant in such 10 proceedings does not apply.” Wolff, 418 U.S. at 556. 11 With respect to prison disciplinary proceedings, the minimum procedural requirements 12 that must be met are: (1) written notice of the charges; (2) at least 24 hours between the time the 13 prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his 14 defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for 15 taking disciplinary action; (4) the right of the prisoner to call witnesses in his defense, when 16 permitting him to do so would not be unduly hazardous to institutional safety or correctional 17 goals; and (5) legal assistance to the prisoner where the prisoner is illiterate or the issues 18 presented are legally complex. Id. at 563–71. In addition, “[s]ome evidence” must support the 19 decision of the hearing officer. Superintendent v. Hill, 472 U.S. 445, 455 (1985). The standard 20 is not particularly stringent and the relevant inquiry is whether “there is any evidence in the record 21 that could support the conclusion reached . . . .” Id. at 455–56 (emphasis added). 22 Plaintiff makes a number of allegations regarding his RVR. Most central to these are: 1- 23 his rights to due process were violated when Defendant Pulido-Esparza issued him a false Rules 24 Violation Report for failing to follow institutional procedures when participating in inmate count 25 (FAC at ¶¶ 66, 67, 69); 2- when Defendant Lieutenant Smith held a hearing on the RVR he failed 26 to intervene during improper proceedings (FAC at ¶ 78); 3- when defendant Smith precluded 27 witnesses from testifying (FAC at ¶¶ 72, 73, 74, 87); and, 4- when defendants Sherman and 28 Smith failed to intervene and investigate the incident of the RVR (FAC at ¶ 56). 1 These allegations, even if true, do not raise a constitutional claim. There is no due process 2 right to be free from false disciplinary charges. The falsification of a disciplinary report does not 3 state a standalone constitutional claim. Canovas v. California Dept. of Corrections, 2:14-cv-2004 4 KJN P, 2014 WL 5699750, n.2 (E.D. Cal. 2014); see e.g., Lee v. Whitten, 2:12-cv-2104 GEB 5 KJN P, 2012 WL 4468420, *4 (E.D. Cal. 2012). There is no constitutionally guaranteed 6 immunity from being falsely or wrongly accused of conduct which may result in the deprivation 7 of a protected liberty interest. Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Freeman 8 v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)). “Specifically, the fact that a prisoner may have 9 been innocent of disciplinary charges brought against him and incorrectly held in administrative 10 segregation does not raise a due process issue. The Constitution demands due process, not error- 11 free decision-making.” Jones v. Woodward, 2015 WL 1014257, *2 (E.D. Cal. 2015) (citing 12 Ricker v. Leapley, 25 F.3d 1406, 1410 (8th Cir. 1994); McCrae v. Hankins, 720 F.2d 863, 868 13 (5th Cir. 1983)). Therefore, Plaintiff has no protected liberty interest against false information 14 being reported against him nor the alleged failure of defendants Smith and Sherman to intervene 15 in the RVR process. 16 Plaintiff also alleges that the disciplinary proceeding against him resulted in the forfeiture 17 of 30 days good time credits and may affect his review of suitability for parole by the Parole 18 Board, causing him to serve a longer sentence (FAC at ¶ 71). When a prisoner challenges the 19 legality or duration of his custody, or raises a constitutional challenge which could entitle him to 20 an earlier release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 21 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 22 (1991). Moreover, when seeking damages for an allegedly unconstitutional conviction or 23 imprisonment, “a § 1983 plaintiff must prove that the conviction or sentence has been reversed 24 on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to 25 make such determination, or called into question by a federal court’s issuance of a writ of habeas 26 corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 487-88 (1994). “A claim for 27 damages bearing that relationship to a conviction or sentence that has not been so invalidated is 28 not cognizable under § 1983.” Id. at 488. This “favorable termination” requirement has been 1 extended to actions under § 1983 that, if successful, would imply the invalidity of prison 2 administrative decisions which result in a forfeiture of good-time credits. Edwards v. Balisok, 3 520 U.S. 641, 643–647 (1997). The Complaint does not contain any allegations to show that 4 Plaintiff’s finding of guilt which resulted in his forfeiture of 30 days good time credits has been 5 reversed, expunged, declared invalid, or called into question by a writ of habeas corpus. Thus, 6 Plaintiff is barred by Heck and Edwards from pursuing any claims under § 1983 concerning the 7 process he was provided which resulted in the forfeiture of good time credits. 8 Plaintiff further alleges that the guilty finding at his RVR hearing may affect whether he 9 is found suitable for parole at a parole hearing. California Penal Code § 3041 vests all California 10 prisoners “whose sentences provide for the possibility of parole with a constitutionally protected 11 liberty interest in the receipt of a parole release date, a liberty interest that is protected by the 12 procedural safeguards of the Due Process Clause.” Saldate v. Adams, 573 F. Supp. 2d 1303, 13 1305 (E.D. Cal. 2008) (citing Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007); see Sass v. 14 California Bd. of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006); Biggs v. Terhune, 334 F.3d 15 910, 914 (9th Cir. 2003). However here, any argument that Plaintiff’s rules violation offense 16 will invariably affect his parole is meritless. Crapo v. Davis, No. 1:13-CV-01190-AWI-GS, 2013 17 WL 5754952, at *4 (E.D. Cal. Oct. 23, 2013). Any assertion that this administrative level offense 18 will affect a future determination of Plaintiff’s parole suitability, let alone be the sole reason for 19 parole denial, is neither credible nor reasonable. Id. The mere fact of Plaintiff’s administrative 20 level violation, while it might possibly constitute one of the myriad of factors that the BPH would 21 consider in a parole hearing, is simply too attenuated to invoke the protections of due process, 22 Sandin, 515 U.S. at 487, and it can hardly be considered so pivotal to the question of granting 23 parole that one could conclude that a sufficient nexus exists between it and the length of 24 imprisonment such that a sufficient likelihood exists of it affecting the overall length of 25 Petitioner's confinement. Id. (citing Docken v. Chase, 393 F.3d 1024, 1030–31 (9th Cir. 2004). 26 Therefore, the Court finds that the mere possibility that Plaintiff’s guilty finding at his RVR 27 hearing may affect whether he is found suitable for parole at a later time is too attenuated to 28 invoke the protections of due process. 1 Thus, based on the foregoing, Plaintiff fails to establish the existence of a liberty interest 2 for which the due process protection is sought and therefore fails to state a claim for violation of 3 his rights to due process. 4 B7. Municipal Policy 5 Plaintiff alleges that defendants Sherman and Smith failed to uphold their duty when they 6 failed to intervene in his RVR hearing or investigate the RVR improper proceedings, which 7 Plaintiff considers violation of a municipal policy of deliberate indifference, and Plaintiff 8 identifies Defendant Sherman’s O.P. 403 policy as a municipal policy that caused Plaintiff to be 9 injured. 10 Under Monell v. New York City Dept. of Social Services, 436 U.S. 658, (1978), “local 11 government units which are not considered part of the State for Eleventh Amendment purposes” 12 can be held liable for violations of Section 1983. Machado v. California Dep’t of Corr. & 13 Rehabilition, No. 12-CV-6501 JSC, 2013 WL 5800380, at *4 (N.D. Cal. Oct. 28, 2013). Here, 14 however, neither Defendant Sherman nor Smith can be said to be acting as a municipality. To 15 the contrary, as discussed above in the section titled Eleventh Amendment Immunity, CDCR as 16 a state agency is entitled to immunity under the Eleventh Amendment, as are Defendants 17 Sherman and Smith as state officials for suits in their official capacity. Id. (citing see Will v. 18 Michigan Dept. of State Police, 491 U.S. 58, 71 (1989)). Plaintiff may contend that Defendants 19 Sherman and Smith are not immune from suits for damages or declaratory relief in their personal 20 capacity Id, and as such Plaintiff would be correct that the Eleventh Amendment does not bar 21 suits for damages against state officials in their individual capacity. Id. (citing see Hafer v. 22 Melo, 502 U.S. 21, 30–31 (1991) (“the Eleventh Amendment does not erect a barrier against suits 23 to impose “individual and personal liability” on state officials under § 1983”)). However, this 24 does not translate into a finding that Defendants Sherman and Smith are municipalities for 25 purposes of Monell liability under Section 1983. See Monell, 436 U.S. at 690–91 (applies only 26 with respect to suits brought against “municipalities and other local government units”. . . stating 27 that “[o]ur holding today is, of course, limited to local government units which are not considered 28 1 part of the State for Eleventh Amendment purposes.”)) Accordingly, Plaintiff’s claims for 2 municipal liability under Section 1983 must be dismissed without leave to amend. 3 B8. Armstrong Remedial Plan & Operational Policy (O.P.) 403 4 Plaintiff alleges that Defendant Stuart Sherman implemented and executed Operational 5 Policy 403, which states that DPW inmates are the only inmates authorized to sit on their beds 6 during count time, which Plaintiff asserts is a direct violation of the Armstrong Remedial Plan. 7 Plaintiff alleges that the Armstrong Remedial Plan provides that “inmates who have a verified 8 disability that prevents them from standing during count shall be reasonably accommodated to 9 provide for effective performance of count.” (ECF No. 13 at 11 ¶ 39.) 10 Plaintiff repeatedly emphasizes Defendants’ alleged violations of the Armstrong 11 Remedial Plan, but such violations do not provide an independent basis for damages in this court. 12 Roberts v. California Dep’t of Corr. & Rehab., No. 2:12-CV-0247 KJM AC, 2014 WL 2109925, 13 at *8 (E.D. Cal. May 20, 2014). Violations of the Armstrong Remedial Plan must be addressed 14 through the procedures provided by that plan. Id. (citing see Frost v. Symington, 197 F.3d 348, 15 358–59 (9th Cir.1999); see also Crayton v. Terhune, 2002 U.S. Dist. LEXIS 17568, *10–11, 16 2002 WL 31093590 (N.D.Cal.2002); Jamison v. Capello, 2013 U.S. Dist. LEXIS 16958, *14, 17 2013 WL 6182035 (E.D.Cal.2013); Weathers v. Hagemeiister–May, 2014 U.S. Dist. LEXIS 18 10524, 15, 2014 WL 309444 (E.D.Cal.2014)). This court does not have jurisdiction to enforce 19 the Armstrong decree. Even if that decree was violated, that does not necessarily mean that Title 20 II of the ADA was violated. Id. (citing see Cagle v. Sutherland, 334 F.3d 980, 986–87 (9th Cir. 21 2003) (consent decrees often go beyond minimum legal requirements)). Accordingly, 22 compliance with the Armstrong decree and/or remedial plan is immaterial to plaintiff’s claim in 23 this case. Plaintiff fails to state a claim for violation of the Armstrong Remedial Plan. 24 B9. Verbal Harassment 25 Plaintiff alleges that Defendant Pulido-Esparza and his co-workers verbally harassed 26 Plaintiff for being a Jailhouse Lawyer and filing grievances. Plaintiff is advised that mere verbal 27 harassment or abuse alone is not sufficient to state a constitutional deprivation under 42 U.S.C. 28 § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). 1 C. STATE LAW CLAIMS 2 Plaintiff alleges that Defendants failed to comply with prison policy, including failure to 3 train employees, and violated California regulations and the DOM (Department Operations 4 Manual). These are state law claims. Plaintiff is informed that violation of state tort law, state 5 regulations, rules and policies of the CDCR, or other state law is not sufficient to state a claim 6 for relief under § 1983. Section 1983 does not provide a cause of action for violations of state 7 law. See Galen v. Cnty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007). To state a claim 8 under § 1983, there must be a deprivation of federal constitutional or statutory rights. See Paul 9 v. Davis, 424 U.S. 693 (1976); also see Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 10 1995); Gonzaga University v. Doe, 536 U.S. 273, 279 (2002). Although the court may exercise 11 supplemental jurisdiction over state law claims, Plaintiff must first have a cognizable claim for 12 relief under federal law. See 28 U.S.C. § 1367. Plaintiff must also sufficiently plead the claim 13 presentation requirement contained in California’s Government Code § 900 et seq. 14 “California’s Government Claims Act requires that a tort claim against a [state] public 15 entity or its employees for money or damages be presented to the [Department of General 16 Services] 5 no more than six months after the cause of action accrues.” Lopez v. Cate, No. 1:10- 17 cv-01773-AWI, 2015 WL 1293450, at *13 (E.D. Cal. 2015) (citing Cal. Gov’t Code §§ 905.2, 18 910, 911.2, 945.4, 950-950.2). “Timely claim presentation is not merely a procedural 19 requirement, but is . . . a condition precedent to plaintiff’s maintaining an action against defendant 20 and thus an element of the plaintiff’s cause of action.” Id. (internal quotation marks and citations 21 omitted). The “obligation to comply with the Government Claims Act” is independent of the 22 obligation to exhaust administrative remedies pursuant to the Prison Litigation Reform Act. 23 McCoy v. Torres, No. 119CV01023NONEJLTPC (E.D. Cal. Sept. 3, 2020), 2020 WL 5257842, 24 at *2, report and recommendation adopted, No. 119CV01023NONEJLTPC, 2021 WL 111748 25 (E.D. Cal. Jan. 12, 2021). 26

27 5 The Department of General Services was formerly the Victim Compensation and 28 Government Claims Board. McCoy, 2020 WL 5257842, at *2), 1 Plaintiff provides evidence that he complied with the California Tort Claims Statute by 2 filing claim #20005047, bringing claims relevant to the claims in this case, which accrued on 3 December 28, 2019,6 was received by the Government Claims Program on June 4, 2020, and that 4 the claim was denied on July 1, 2020, before the original Complaint was filed on August 20, 5 2020. (ECF No. 13 at 26-31.) See Cardenas v. Cty. of Tehama, No. 218CV03021TLNDMC, 6 2020 WL 4475188, at *10 (E.D. Cal. Aug. 4, 2020). Plaintiff attached the claim to the First 7 Amended Complaint, indicating when he filed the claim and what specific facts and causes of 8 action were referred to in the claim. (See ECF No. 13 at 16:26-31.) 9 I fell to the ground [and] injured my right knee and wrist. SATF is 10 violating ARP § II, 1-6 – Eligibility for a standing count accommodation therefore 11 is not limited to people classified DPW. I have several muscle cramps due to 12 elevated creatine kinase. SATF has denied my accommodation as a DPO inmate 13 stating I’m not DPW as per O.P. 403. Headquarters staff all failed to meaningfully 14 consider my disability related request by denying my request for 15 accommodations, which violates Armstrong Remedial Plan. I’m being retaliated 16 against for filing grievances and lawsuits against prison officials. 17 With this information, Plaintiff has sufficiently pleaded facts demonstrating he complied 18 with the California Government Claims Act in bringing his state law claims, which the Court 19 now screens for claims upon which relief may be granted. However, as follows, Plaintiff fails to 20 state a cognizable claim for relief for any of his state claims, and therefore his state claims fail. 21 C1. Failure-to Train 22 Plaintiff alleges that Defendant Sherman failed to train his officers to accommodate DPO 23 (intermittent wheelchair user) inmates such as Plaintiff to sit instead of standing during 24 institutional count at 1700 hours. (FAC at ¶ 50.) This allegation, without more, is too vague and 25

26 6 Plaintiff alleges in the First Amended Complaint that the incident with Defendant Pulido-Esparza occurred from December 15, 2019 through December 28, 2019, and on December 28, 27 2019, Defendant Pulido-Esparza issued Plaintiff a Rules Violation report (RVR) #006948533 for the 28 specific act: Failure to Present for Count as Described in Institutional Procedures. (ECF No. 13 at 14 ¶¶ 65-66.) 1 conclusory to state a cognizable claim. Plaintiff has not alleged any facts regarding the existence 2 of a training program, or the adequacy, or inadequacy, of Defendant Sherman’s training program 3 regarding the accommodation of inmates who use wheelchairs or other assistive devices, and 4 fails to allege facts showing a pattern of behavior by officers. 5 Therefore, Plaintiff fails to state a cognizable claim against Defendant Sherman for failure 6 to train officers. 7 C2. Title 15 Regulations, DOM Provisions 8 Plaintiff alleges that Defendants violated California state regulations, 15 CCR § 3320(e), 9 15 CCR § 3320(h), and 15 CCR §3320(J). (FAC at ¶¶ 80, 81, 82.) Plaintiff also alleges that 10 Defendants failed to comply with D.O.M. (Department Operations Manual) §52020.5.1, which 11 states that disabled inmates shall be reasonably accommodated, dependent on their disability. 12 (FAC at ¶ 95.) 13 The existence of DOM provisions governing the conduct of prison officials does not 14 necessarily entitle an inmate to sue civilly for their violation. E.g., Vasquez v. Tate, No. 1:10- 15 cv-1876 JLT (PC) (E.D.Cal. Dec. 28, 2012), 2012 WL 6738167, at *9; Davis, 901 F.Supp.2d at 16 1211. 17 Importantly, there is no private right of action under Title 15. See e.g., Davis v. Powell, 18 901 F. Supp. 2d 1196, 1211 (S.D. Cal. 2012) (“There is no implied private right of action under 19 title fifteen of the California Code of Regulations”); Hill v. White, 2014 U.S. Dist. LEXIS 22960, 20 2014 WL 711016, at *5 (E.D. Cal. 2014) (Title 15 of the California Code of Regulations does 21 not provide a private right of action). See also Patterson v. California Dep’t of Corr. & 22 Rehab. (E.D.Cal. July 7, 2022, No. 1:22-cv-00138-JLT-BAM (PC)) 2022 U.S.Dist.LEXIS 23 119791, at *22-24 (citing see, e.g., Nible v. Fink, 828 Fed.Appx. 463 (9th Cir. 2020) (violations 24 of Title 15 of the California Code of Regulations do not create private right of action); Prock v. 25 Warden, No. 1:13-cv-01572-MJS (PC), 2013 U.S. Dist. LEXIS 145626, 2013 WL 5553349, at 26 *11-12 (E.D. Cal. Oct. 8, 2013) (noting that several district courts have found no implied private 27 right of action under title 15 and stating that “no § 1983 claim arises for [violations of title 15] 28 even if they occurred.”); Parra v. Hernandez, No. 08cv0191-H (CAB), 2009 U.S. 1 Dist. LEXIS 106092, 2009 WL 3818376, at *3 (S.D. Cal. Nov. 13, 2009) (granting motion to 2 dismiss prisoner’s claims brought pursuant to Title 15 of the California Code of 3 Regulations); Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW (PC), 2009 U.S. 4 Dist. LEXIS 41499, 2009 WL 1211372, at *9 (E.D. Cal. May 1, 2009) (holding that there is no 5 private right of action under Title 15 of the California Code of Regulations). Similarly, there is 6 no liability under 1983 for violating prison policy. Cousins v Lockyer, 568 F.3d 1070 (9th Cir. 7 2009); Chiprez v Warden, 2021 US Dist Lexis 156145). 8 Accordingly, Plaintiff’s state claims that Defendants violated Title 15 regulations and 9 provisions of the D.O.M. should be dismissed for failing to state a colorable claim for relief, 10 since no such private right exists. 11 C3. Negligence 12 Plaintiff has not alleged in the FAC that any of the Defendants were negligent. However, 13 to the extent that such a claim may exist in the FAC, the Court shall address the requirements to 14 state a negligence claim. To state a claim for negligence under California law, a plaintiff must 15 plead sufficient facts to show “(1) duty; (2) breach; (3) causation; and (4) damages.” Ileto v. 16 Glock Inc., 349 F.3d 1191, 1203 (9th Cir. 2003). A plaintiff ‘must allege a causal connection 17 between the negligence . . . and the injury he suffered. Berkley v. Dowds, 152 Cal. App. 4th 518, 18 528, 61 Cal. Rptr. 3d 304, 312 (2007). Prison officials have a duty to ensure that prisoners are 19 provided adequate shelter, food, clothing, sanitation, medical care, and personal safety. Johnson 20 v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). The Court finds that Plaintiff fails to state a 21 negligence claim against any of the Defendants, as discussed below. 22 3a. Defendant CDCR & Warden Sherman 23 With few exceptions not applicable here,7 California Government Code § 844.6 makes 24 public entities immune from liability for an injury to “any prisoner.” Millare v. CDCR, No. 25

26 7 Liability is limited to the failure to summon care for “serious and obvious medical conditions requiring immediate care” of which the defendant has “actual or constructive knowledge.” 27 Millare, 2023 WL 2760908, at *6 (E.D. Cal. Apr. 3, 2023) (quoting Watson v. State of California, 21 28 Cal.App. 4th 836, 841 (1993). 1 2:22CV1862KJMKJN P, 2023 US Dist Lexis 58253, at *6 (E.D. Cal. Apr. 3, 2023; Jacks v 2 Gonzalez 2021 Cal. Super. Lexis 40454). Therefore, pursuant to California Government Code § 3 844.6, defendant CDCR is immune from suit as to Plaintiff’s negligence claim. 4 As for Warden Sherman, California Government Code 820.8 provides a public 5 employee is not liable for an injury caused by the act or omission of another person (see, Jacks 6 supra). Here, other than alleging that defendant Sherman failed to “meaningfully consider 7 Plaintiff’s disability-related request” (1AC, #24), Plaintiff has not alleged facts that Warden 8 Sherman was involved in the incident that allegedly caused Plaintiff’s injury, thus Plaintiff fails 9 to allege a negligence claim against Warden Sherman. 10 3b. Defendant Pulido-Esparza 11 Plaintiff alleges in the FAC that the incident with Defendant Pulido-Esparza occurred “on 12 December 15, 2019 through December 28, 2019.” (FAC at ¶ 65.) Plaintiff alleges that he 13 informed Defendant Pulido-Esparza that he was having severe cramps and could not stand at that 14 particular moment in time and that he has fallen numerous times already. (FAC at ¶ 63.) Plaintiff 15 alleges that Defendant Pulido-Esparza just asked Plaintiff if he was DPW and walked off, then 16 issued Plaintiff an RVR for not being able to stand due to a medical condition. (FAC at ¶¶63, 17 64.) These allegations are not sufficient to support a cognizable negligence claim against 18 Defendant Pulido-Esparza because Plaintiff has not described any injury resulting from 19 Defendant Pulido-Esparza’s conduct.8 In addition, if Plaintiff’s injury occurred on December 20 29, 2019 (see, footnote 8 below), then it must be assumed that defendant Pulido-Esparza was not 21 the individual who was present on the 29th, and again Cal Govt Code 820.8 would not attribute 22 liability to him. 23 3c. Defendant Smith 24 Likewise, Plaintiff cannot succeed with a negligence claim against Defendant Smith 25 because Plaintiff has not shown that his claimed physical injury to his right knee and wrist was 26

27 8 In his Government Torts Claim, Plaintiff describes falling on December 29, 2019. (ECF 28 No. 13, Exh. B. pg 26). However, this date is not within the time period Plaintiff alleges the incident with Defendant Pulido-Esparza occurred (December 15, 2019 through December 28, 2019, see above). 1 caused by conduct on defendant Smith’s part as required in a negligence suit. Again, under 2 California law the elements of a negligence cause of action are the following: 1- a legal duty to 3 use due care; 2- breach of that duty; 3- the breach was the proximate or legal cause of the resulting 4 injury; and, 4- actual loss or damage (see, Millare, supra). 820.8 Here, Plaintiff has not done so. 5 In addition, Cal Gov code 820.8 comes into play absolving defendant Smith of negligence 6 liability. 7 C4 Conclusion 8 The Court finds that Plaintiff fails to state any cognizable state law claims in the FAC. 9 10 D. RELIEF REQUESTED 11 In addition to monetary damages and costs of suit, Plaintiff also requests declaratory 12 relief, injunctive relief, and attorney’s fees as relief. 13 D1 Declaratory Relief 14 With regard to declaratory relief, such request should be denied because it is subsumed by 15 Plaintiff’s damages claim. See Rhodes, 408 F.3d at 565-66 n.8 (because claim for damages 16 entails determination of whether officers’ alleged conduct violated plaintiff’s rights, the separate 17 request for declaratory relief is subsumed by damages action); see also Fitzpatrick v. Gates, No. 18 CV 00-4191-GAF (AJWx), 2001 WL 630534, at *5 (C.D. Cal. Apr. 18, 2001) (“Where a plaintiff 19 seeks damages or relief for an alleged constitutional injury that has already occurred declaratory 20 relief generally is inappropriate[.]”) 21 D2 Attorneys Fees 22 With regard to attorney’s fees, “[i]n any action or proceeding to enforce a provision of 23 section[] 1983. . . , the court, in its discretion, may allow the prevailing party . . . reasonable 24 attorney’s fees. . . .” 42 U.S.C. § 1988(b). However, Plaintiff’s contention that he is entitled to 25 attorney’s fees if he prevails is without merit. Plaintiff is representing himself in this action. 26 Because Plaintiff is not represented by an attorney, he is not entitled to recover attorney’s fees if 27 he prevails. See Friedman v. Arizona, 912 F.2d 328, 333 n.2 (9th Cir. 1990), superseded by 28 statute as stated in Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005); Gonzalez v. Kangas, 1 814 F.2d 1411, 1412 (9th Cir. 1987); see also Rickley v. Cnty. of Los Angeles, 654 F.3d 950, 2 954 (9th Cir. 2011) (“The Court accordingly adopted a per se rule, categorically precluding an 3 award of attorney’s fees under § 1988 to a pro se attorney-plaintiff.”). 4 D3 Expungement of the RVR 5 Plaintiff seeks an order expunging the RVR because it caused him to lose credits. He 6 also alleges that, the RVR may affect the determination of his eligibility for parole by the Parole 7 Board. Requests for prospective relief are limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison 8 Litigation Reform Act, which requires that the Court find the “relief [sought] is narrowly drawn, 9 extends no further than necessary to correct the violation of the Federal right, and is the least 10 intrusive means necessary to correct the violation of the Federal right.” O’Brien v. Ogletree 11 (E.D.Cal. Mar. 15, 2021, No. 1:20-cv-1553-BAM (PC)) 2021 U.S.Dist.LEXIS 48279, at *10- 12 11. A federal court may issue an injunction if it has personal jurisdiction over the parties and 13 subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons 14 not before the court. Id. Indeed, a court’s duty to protect inmates’ constitutional rights does not 15 confer the power to manage prisons or the capacity to second-guess prison administrators, a task 16 for which courts are ill-equipped. Id. (citing Toussaint v. McCarthy, 801 F.2d 1080, 1086 (9th 17 Cir. 1986), abrogated on other grounds by Sandin, 515 U.S. 472). 18 Importantly, requests for prospective injunctive relief are limited by 18 USC 19 3626(a)(1)(A) of the Prison Litigation Reform Act, which requires that the Court find the relief 20 sought is narrowly drawn, extends no further than necessary to correct the violation of the Federal 21 right, and is the least intrusive means necessary to correct the violation of the Federal right. (see, 22 O’Brien v Ogletree, 2021 US Dist Lexis 48279). Here, the Court cannot grant Plaintiff's request 23 for relief to remove the RVR because the validity of the RVR is not the subject of the single 24 claim for which this court has determined Plaintiff states a claim, the ADA claim. Moreover, 25 expunging the RVR would not correct Plaintiff’s claimed ADA violation. 26 V. CONCLUSION, ORDER, AND RECOMMENDATIONS 27 For the reasons set forth above, the court finds that Plaintiff states cognizable claims in 28 the First Amended Complaint against Defendant CDCR for violation of the ADA, but fails to 1 state any other cognizable claims in the First Amended Complaint, nor any claims against the 2 individual Defendants Smith, Sherman & Pulido-Esparza. Under Rule 15(a) of the Federal Rules 3 of Civil Procedure, “[t]he court should freely give leave to amend when justice so requires.” 4 However, a district court may deny leave to amend when amendment would be futile.” Hartmann 5 v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013). In this action, the Court previously granted 6 Plaintiff an opportunity to amend the complaint with guidance by the Court. Plaintiff has now 7 filed two complaints without alleging facts against any of the individual Defendants, except 8 CDCR, upon which relief may be granted. The Court finds that the deficiencies outlined above 9 are not capable of being cured by amendment, and therefore further leave to amend should not 10 be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 11 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign a 12 United States District Judge to this case; 13 AND 14 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 15 1. This case proceed only against defendant CDCR for violation of the ADA, that 16 all other claims and defendants be dismissed for failure to state a claim, with 17 prejudice, and without leave to amend; 18 2. Plaintiff’s claims for retaliation, the prison appeals process, equal protection, 19 violation of due process, municipal policy, Operations Procedure 403; Armstrong 20 Remedial Plan, the D.O.M, verbal harassment, and state law claims be dismissed 21 with prejudice; 22 4. Defendants Lieutenant C. Smith (Hearing Officer), Correctional Officer L. 23 Pulido-Esparza, and Stuart Sherman (Warden) be dismissed from this case for 24 Plaintiff’s failure to state a claim against them; and 25 5. This case be referred back to the magistrate judge for further proceedings, 26 including initiation of service of process. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). On or before 1 April 25, 2023, Plaintiff may file written objections to the findings and recommendations with 2 the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 3 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 4 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th 5 Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 IT IS SO ORDERED. 7

8 Dated: April 7, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28