(PC) Trotter v. Pfeiffer

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JAMES TROTTER, Case No. 1:18-cv-00259-LJO-BAM (PC) 9 Plaintiff, FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF 10 v. ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM FOR RELIEF 11 WARDEN PFEIFFER, et al., (ECF No. 48) 12 Defendants. FOURTEEN (14) DAY DEADLINE 13 14 Plaintiff James Trotter is a state prisoner currently proceeding pro se and in forma 15 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 16 Currently before the Court for screening is Plaintiff’s second amended complaint, filed on 17 November 18, 2019. (ECF No. 48.) 18 I. Introduction 19 Plaintiff initiated this action by filing his original complaint on January 22, 2018. (ECF 20 No. 1.) On March 22, 2019, the Court screened Plaintiff’s complaint and granted Plaintiff leave 21 to file a first amended complaint. (ECF No. 24.) On April 15, 2019, Plaintiff filed a first 22 amended complaint. (ECF No. 27.) On July 3, 2019, the Court issued a screening order finding 23 that Plaintiff’s first amended complaint failed to comply with Federal Rule of Civil Procedure 8 24 and failed to state any cognizable claim for relief. (ECF No. 37.) The Court granted Plaintiff 25 thirty days to either file a second amended complaint or a notice of voluntary dismissal. (Id. at 26 15-16.) On August 9, 2019, Plaintiff filed a motion for an extension of time to file a second 27 amended complaint. (ECF No. 44.) On August 13, 2019, the Court granted Plaintiff an 28 additional thirty days to file a second amended complaint. (ECF No. 46.) 1 On September 9, 2019, the Court’s August 13, 2019 order was returned as “Undeliverable, 2 Unable to Forward.” On October 31, 2019, after Plaintiff failed to file a notice of change of 3 address, file a second amended complaint, or otherwise communicate with the Court for more 4 than sixty-three days, the undersigned issued findings and recommendations recommending that 5 this action be dismissed based on Plaintiff’s failure to prosecute this action. (ECF No. 47.) The 6 findings and recommendations were served on Plaintiff and contained notice that any objections 7 thereto were to be filed within fourteen (14) days after service. (Id. at 3.) 8 However, as noted above, Plaintiff filed a second amended complaint on November 18, 9 2019. (ECF No. 48.) Therefore, on November 21, 2019, the Court vacated the October 31, 2019 10 findings and recommendations recommending dismissal of this action due to Plaintiff’s failure to 11 prosecute. (ECF No. 49.) The Court now screens the second amended complaint. 12 II. Screening Requirement and Standard 13 The Court is required to screen complaints brought by prisoners seeking relief against a 14 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 15 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 16 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 17 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 18 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 19 A complaint must contain “a short and plain statement of the claim showing that the 20 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 21 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 22 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 23 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 24 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 25 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 26 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 27 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 28 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 1 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 2 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 3 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 4 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 5 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d 6 at 969. 7 III. Summary of Plaintiff’s Second Amended Complaint 8 Plaintiff is currently housed at Folsom State Prison. Plaintiff alleges that the events at 9 issue in his second amended complaint took place at Kern Valley State Prison (“KVSP”). 10 Plaintiff names the following Defendants: (1) KVSP Warden Pfeiffer; (2) Correctional Officer 11 Garcia; and (3) Correctional Officer Barcia Reign. 12 Plaintiff alleges as follows: On April 22, 2017, Plaintiff was assigned as a Dining 13 Vocational Trade Worker, section location 004-A 7/8 Dining 2/w, with Position #DRW.004.004. 14 “06/01/2017 correction officer Garcia briefing had been given by administration staff 15 Facility ‘C’ and ordering him to comply he personally refused denoucing (sic) all good changes, 16 again strongly refusing to hirer (sic) anybody, not only White inmates, no Black inmates, and no 17 Asian inmates.” (ECF No. 48, at 5.) The Facility C Staff Sergeant requested a list of inmates 18 who qualified for medium custody status to work in the culinary trade. Plaintiff submitted 15 19 names on a list and another list was submitted, consisting of 10 names of inmates who previously 20 worked for Defendant Garcia and who said that they knew how to work around Defendant 21 Garcia. 22 However, Defendant Garcia totally ignored “instruction, the list and completely refused 23 hirering (sic) inmates who passed all the cook tests White inmates, Black inmates, and Asian 24 inmates, and [Defendant Garcia] again said … [he was] only for my people Mexican inmates this 25 is our Land.” (Id.) From June 1, 2017 and on, Defendant Garcia continued opposing all direct 26 orders from administrative staff members to hire inmates of all races in order to balance the 27 ethnic makeup of the kitchen workers. 28 Plaintiff asserts that “the direct job assignment is headed by designated assignment Lt. 1 (only)[.]” (Id. at 6.) On December 8, 2017, Plaintiff was issued an Inmate Assignment Card for 2 Location YDW.003.005-A Upper Yard 2/w position YDW.003.005. Plaintiff alleges that 3 “Correction Officer Garcia and Facility Lt. who created actual crime both together illegally 4 changing job assignment with no authority.” (Id.) 5 On the night of December 8, 2017, Plaintiff filed a 602 appeal form. Almost immediately 6 after that, Plaintiff was sent another Inmate Assignment Card that reassigned him back to his 7 former Dining Worker position, with an effective date of December 12, 2017. After alerting 8 Management Cook II, Facility Sergeant, and all correctional officers working in the kitchen that 9 he was reassigned to his former Dining Worker position, Plaintiff reported each day to his job 10 assignment, but each time he “was illegally denied and turned away for no reason.” (Id.) 11 Plaintiff subsequently filed a 602 appeal, explaining the situation involving Correctional 12 Officer Garcia. Plaintiff was eventually interviewed by the Facility lieutenant, “who said he 13 already knows and I agreed saying the only computer that change a inmate assignment is Lt., 14 which I said you broke into Lt. assignment office illegally P.C. § 626.” (Id.) 15 “Days later ‘punishment’ correction officers came to living quarters stating Lt. Facility A 16 want to see me again, I said let’s go ready, willing and able, and Correction officer’s (sic) said 17 turn around and cuff up and I was placed in administrative segregation with no pending rules 18 violation report, no contact with the outside work of any kind substantive right’s (sic) 19 constitutional violation’s (sic). Punishment no rights, Punishment no liberty, and miscarriage of 20 justice.” Id. Further, Plaintiff alleges that he was “adverse punishment by confinement in a 21 prison cell beyond ten days maximum time period with the right to exercise, as administrative 22 punishment, without his due process right to notice of the cause for confinement.” (Id. at 3.) 23 Finally, Plaintiff alleges that Plaintiff alleges his First and Fourteenth Amendments were violated 24 when he was denied access to the court, legal library, legal books, and paper when he was 25 confined to administrative segregation. 26 Plaintiff seeks declaratory relief and compensatory and punitive damages. 27 IV. Discussion 28 A. Federal Rule of Civil Procedure 8 1 Pursuant to Rule 8, a complaint must contain “a short and plain statement of the claim 2 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Plaintiff must set forth 3 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 4 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual allegations are 5 accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556-57; Moss, 572 6 F.3d at 969. 7 Here, while Plaintiff’s complaint is short, it is not a plain statement of his claims. Many 8 of Plaintiff’s allegations are conclusory statements that are unsupported by facts. For instance, 9 Plaintiff’s complaint fails to include sufficient factual allegations to state a claim that is plausible 10 on its face against Defendant Barcia Reign. Plaintiff must plead sufficient factual allegations to 11 inform each named defendant as to the nature of the claims asserted against them. Despite being 12 previously advised of this deficiency and given leave to amend, Plaintiff has been unable to cure 13 this deficiency. 14 B. Linkage Requirement 15 The Civil Rights Act under which this action was filed provides: 16 Every person who, under color of [state law] ... subjects, or causes to be subjected, 17 any citizen of the United States ... to the deprivation of any rights, privileges, or 18 immunities secured by the Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 19 20 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between 21 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 22 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 23 Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional 24 right, within the meaning of section 1983, if he does an affirmative act, participates in another’s 25 affirmative acts or omits to perform an act which he is legally required to do that causes the 26 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 27 Here, Plaintiff fails to adequately link Defendant Barcia Reign to any constitutional 28 violation. While Plaintiff’s second amended complaint includes conclusory legal allegations 1 against Defendant Barcia Reign, there are no factual allegations identifying Defendant Barcia 2 Reign’s asserted involvement in any constitutional violation. At most, Plaintiff’s second 3 amended complaint asserts that Defendant Barcia Reign advised Plaintiff that he did not want 4 black and/or white inmates working for him in the culinary vocational jobs at Kern Valley State 5 Prison, but there are no factual allegations to suggest that Defendant Barcia Reign was involved 6 in actually denying Plaintiff an assignment to a culinary vocational job. Despite being previously 7 advised of this deficiency and given leave to amend, Plaintiff has been unable to cure this 8 deficiency. 9 C. Supervisory Liability 10 To the extent Plaintiff seeks to hold Defendant Pfeiffer liable based solely upon his 11 supervisory role as Warden, he may not do so. Liability may not be imposed on supervisory 12 personnel for the actions or omissions of their subordinates under the theory of respondeat 13 superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020–21 14 (9th Cir.2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. 15 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 16 Supervisors may be held liable only if they “participated in or directed the violations, or 17 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 18 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. 19 Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Supervisory liability may also exist without any 20 personal participation if the official implemented “a policy so deficient that the policy itself is a 21 repudiation of constitutional rights and is the moving force of the constitutional violation.” 22 Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations 23 marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 24 Here, Plaintiff alleges that Defendant Pfeiffer maintained a correctional officials’ practice, 25 policy, and procedure that repudiated Plaintiff’s constitutional rights and that Defendant Pfeiffer 26 is, or was in, a position of authority that he could arrange to have the racially-based exclusionary 27 practices cease. However, Plaintiff has failed to allege any facts demonstrating that Defendant 28 Pfeiffer knew of the constitutional violations and failed to act to prevent them. While Plaintiff has 1 alleged that Defendant Pfeiffer has maintained a policy that repudiated his constitutional rights, 2 Plaintiff has failed to allege any facts identifying the policy that he alleges repudiated his 3 constitutional rights, any facts to support his conclusory allegation that Defendant Pfeiffer 4 implemented this deficient policy, or any facts demonstrating that the deficient policy was the 5 moving force behind the violation of Plaintiff’s constitutional rights. In fact, Plaintiff alleges that 6 Defendant Garcia opposed all direct orders from administrative staff members to hire inmates of 7 all races in order to balance the ethnic makeup of the kitchen workers. Thus, Plaintiff’s 8 allegations are that Defendant Garcia’s actions were unauthorized and not made pursuant to any 9 policy. Therefore, Plaintiff has not pled a cognizable supervisory liability claim against 10 Defendant Pfeiffer. Despite being previously advised of this deficiency and given leave to 11 amend, Plaintiff has been unable to cure this deficiency. 12 D. Equal Protection 13 Plaintiff alleges that his right to equal protection of the laws was violated when, after 14 being told by Defendants Garcia and Barcia Reign that they did not want White, Black, or Asian 15 inmates working for them in the culinary vocational jobs, his prison job assignment was illegally 16 switched by Defendant Garcia and the then-Facility A Yard lieutenant from “Dining Room 17 Worker” to an “Upper Yard position.” Further, Plaintiff also alleges that, after he was reassigned 18 back to his former “Dining Room Worker” position a short time later, he was illegally “denied 19 and turned away” each subsequent day that he reported to the kitchen for “no reason.” (ECF No. 20 48, at 6.) 21 “While the Due Process Clause of the Fourteenth Amendment ‘does not create a property 22 or liberty interest in prison employment,” Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir. 1986) 23 (per curiam); see Baumann v. Ariz. Dep’t of Corrs., 754 F.2d 841, 846 (9th Cir. 1985), racial 24 discrimination in the assignment of jobs violates equal protection[.]” Walker v. Gomez, 370 F.3d 25 969, 973 (9th Cir. 2004). The Equal Protection Clause requires that persons who are similarly 26 situated be treated alike. Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). An 27 equal protection claim may be established by showing prison officials intentionally discriminated 28 against a plaintiff based on his membership in a protected class, such as race, see, e.g., Thornton 1 v. City of St. Helens, 425 F.3d 1158, 1167; Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th 2 Cir. 2001), or similarly situated individuals were intentionally treated differently without a 3 rational relationship to a legitimate state purpose, Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 4 601-02 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch Ltd. 5 v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008). 6 Here, while Plaintiff alleges that his prison job assignment was switched from a dining 7 worker position to an upper yard position after Defendants Garcia and Barcia Reign stated that 8 they did not want White, Black, or Asian inmates working for them, Plaintiff has not alleged that 9 he is White, Black, or Asian and/or any facts showing that Defendant Garcia and the unnamed 10 then-Facility A Yard lieutenant “came together to illegally change” his job assignment without 11 any authority to do so because Plaintiff is a Black, White, or Asian inmate. Further, while 12 Plaintiff alleges that, after he was reassigned back to a dining room worker position, he was 13 “turned away” each day that he reported to the kitchen for work by unnamed defendants, Plaintiff 14 has failed to allege the identity of the individuals who turned him away each day that he reported 15 for work and/or any facts demonstrating that the unnamed individuals turned Plaintiff away each 16 day that he reported to work because Plaintiff is a Black, White, or Asian inmate. Therefore, 17 Plaintiff has not pled a cognizable Equal Protection claim against Defendants Garcia and Barcia 18 Reign. Despite being previously advised of this deficiency and given leave to amend, Plaintiff 19 has been unable to cure this deficiency. 20 E. Deprivation of Property 21 Plaintiff alleges that Defendant Garcia confiscated all or some of Plaintiff’s legal 22 documents. 23 The Due Process Clause of the Fourteenth Amendment of the United States Constitution 24 protects Plaintiff from being deprived of property without due process of law, Wolff v. 25 McDonnell, 418 U.S. 539, 556 (1974), and Plaintiff has a protected interest in his personal 26 property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). Authorized, intentional deprivations 27 of property are actionable under the Due Process Clause. See Hudson v. Palmer, 468 U.S. 517, 28 532, n.13 (1984); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985). However, unauthorized 1 intentional and/or negligent deprivations of property do not constitute a violation of the 2 procedural component of the Due Process Clause of the Fourteenth Amendment so long as the 3 state provides an adequate post-deprivation remedy. Hudson, 468 U.S. at 533; Barnett v. 4 Centoni, 31 F.3d 813, 816 (9th Cir. 1994). 5 Here, Plaintiff has not alleged any facts demonstrating that Correctional Officer Garcia’s 6 confiscation of his legal documents was both intentional and authorized. Further, to the extent 7 that Plaintiff’s claim that his legal documents were confiscated is based on an unauthorized 8 deprivation of property, Plaintiff has an adequate post-deprivation remedy under California law. 9 Plaintiff may not pursue a due process claim arising from the unauthorized confiscation of his 10 legal documents. Barnett, 31 F.3d at 816-17 (citing Cal. Gov’t Code §§ 810-895). Therefore, 11 Plaintiff has not pled a cognizable claim against Defendant Garcia for deprivation of property in 12 violation of the Fourteenth Amendment. Despite being previously advised of this deficiency and 13 given leave to amend, Plaintiff has been unable to cure this deficiency. 14 F. Interference With Access to Courts 15 Plaintiff alleges that, when he was punished “by confinement in a prison cell beyond ten 16 days maximum time period[,]” he was denied access to the courts, the law library, legal 17 documents, books, and paper. (ECF No. 48, at 3.) 18 Prisoners have a “fundamental constitutional right of access to the courts.” Bounds v. 19 Smith, 430 U.S. 817, 828 (1977). The right of access is grounded in the First and Fourteenth 20 Amendments. Silva v. Di Vittorio, 658 F.3d 1090, 1101–02 (“Under the First Amendment, a 21 prisoner has both a right to meaningful access to the courts and a broader right to petition the 22 government for a redress of his grievances.”); Cornett v. Donovan, 51 F.3d 894, 897 (9th Cir. 23 1995) (“The right of access is grounded in the Due Process and Equal Protection Clauses.”). 24 Claims for denial of access to the courts may arise from the frustration or hindrance of “a 25 litigating opportunity yet to be gained” (forward-looking access claim) or from the loss of a 26 meritorious suit that cannot now be tried (backward-looking claim). Christopher v. Harbury, 536 27 U.S. 403, 412-15 (2002). In order to allege a violation of the right to access the courts, an inmate 28 must demonstrate that he suffered an actual injury by pleading facts showing “actual prejudice 1 with respect to contemplated or existing [non-frivolous] litigation, such as the inability to meet a 2 filing deadline or to present a claim.” Lewis v. Casey, 518 U.S. 343, 348 (1996). The injury 3 requirement is not “satisfied by just any type of frustrated legal claim.” Id. at 354–55. It is only 4 satisfied if an inmate is denied access with regard to direct criminal appeals, habeas corpus 5 petitions, and civil actions brought pursuant to 42 U.S.C. § 1983. Id. “Failure to show that a 6 ‘nonfrivolous legal claim ha[s] been frustrated’ is fatal” to a denial of access to the courts claim. 7 Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008). 8 Here, first, Plaintiff has not identified any defendants who allegedly interfered with his 9 constitutional right to access the courts. Second, Plaintiff has failed to allege any facts 10 demonstrating that Plaintiff suffered actual prejudice with respect to any contemplated or existing 11 non-frivolous litigation as a result of being denied access to the courts, the law library, any legal 12 documents, books, and paper while he was either confined to administrative segregation. 13 Therefore, Plaintiff has not pled a cognizable claim for denial of access to the courts. Despite 14 being previously advised of this deficiency and given leave to amend, Plaintiff has been unable to 15 cure this deficiency. 16 G. Retaliation 17 Plaintiff alleges that unidentified defendants retaliated against him after he exercised his 18 right for redress of his grievances. 19 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to 20 petition the government may support a § 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090, 1104 21 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. 22 Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). 23 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 24 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 25 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 26 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 27 correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. 28 Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 at 1104; Brodheim v. Cry, 584 F.3d 1 1262, 1269 (9th Cir. 2009). 2 Adverse action taken against a prisoner “need not be an independent constitutional 3 violation. The mere threat of harm can be an adverse action.” Watison, 688 F.3d at 1114 (internal 4 citations omitted). A causal connection between the adverse action and the protected conduct can 5 be alleged by an allegation of a chronology of events from which retaliation can be inferred. Id. 6 The filing of grievances and the pursuit of civil rights litigation against prison officials are both 7 protected activities. Rhodes, 408 F.3d at 567–68. The plaintiff must allege either a chilling effect 8 on future First Amendment activities, or that he suffered some other harm that is “more than 9 minimal.” Watison, 668 F.3d at 1114. A plaintiff successfully pleads that the action did not 10 reasonably advance a legitimate correctional goal by alleging, in addition to a retaliatory motive, 11 that the defendant’s actions were “arbitrary and capricious” or that they were “unnecessary to the 12 maintenance of order in the institution.” Id. 13 Here, Plaintiff has only asserted a conclusory allegation that he was subject to retaliatory 14 conduct after he exercised his right to redress his grievances. Plaintiff has not alleged any facts 15 demonstrating that a named Defendant took some adverse action against Plaintiff because of 16 Plaintiff’s protected conduct, that the adverse action chilled Plaintiff’s exercise of his First 17 Amendment rights, and that the adverse action did not reasonably advance a legitimate 18 penological goal. Therefore, Plaintiff has not pled a cognizable claim for retaliation in violation 19 of the First Amendment. Despite being previously advised of this deficiency and given leave to 20 amend, Plaintiff has been unable to cure this deficiency. 21 H. Administrative and/or Disciplinary Segregation 22 Plaintiff alleges that he “was adverse[ly] punish[ed] by confinement in a prison cell 23 beyond ten days maximum time period with the right to exercise, as administrative punishment, 24 without his due process right to notice of the cause for confinement.” (ECF No. 48, at 3.) 25 Plaintiff further alleges that this confinement also violated his Eighth Amendment protection 26 against cruel and unusual punishment. 27 1. Eighth Amendment 28 The Eighth Amendment protects prisoners from inhumane methods of punishment and 1 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2 2006). Extreme deprivations are required to make out a conditions of confinement claim, and 3 only those deprivations denying the minimal civilized measure of life’s necessities are 4 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 5 503 U.S. 1, 9 (1992). In order to state a claim for violation of the Eighth Amendment, a plaintiff 6 must allege facts sufficient to support a claim that prison officials knew of and disregarded a 7 substantial risk of serious harm to the plaintiff. E.g., Farmer v. Brennan, 511 U.S. 847 (1994); 8 Frost v. Agnos, 152 F.2d 1124, 1128 (9th Cir. 1998). 9 Here, since Plaintiff has not alleged facts establishing that he was deprived of adequate 10 food, drinking water, sanitation, and/or personal hygiene items while he was confined to a prison 11 cell beyond 10 days, Plaintiff has failed to allege facts demonstrating that Plaintiff was subjected 12 to conditions sufficiently grave to fall within the purview of the Eighth Amendment. May v. 13 Baldwin, 109 F.3d 557, 565-66 (9th Cir. 1997). Further, Plaintiff has not alleged any facts 14 showing that any named Defendant knowingly disregarded a substantial risk of harm to Plaintiff. 15 Therefore, Plaintiff has not pled a cognizable Eighth Amendment claim. Despite being 16 previously advised of this deficiency and given leave to amend, Plaintiff has been unable to cure 17 this deficiency. 18 2. Fourteenth Amendment 19 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations 20 of life, liberty, or property; and those who seek to invoke its procedural protection must establish 21 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). To plead a 22 procedural due process violation, a plaintiff must allege: (1) that the state interfered with a life, 23 liberty, or property interest; and (2) the procedures used to deprive such interest were 24 constitutionally insufficient. Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1990). 25 Liberty interests may be found in either the Due Process Clause of the Fourteenth Amendment or 26 in state law. Chappell v. Mandeville, 706 F.3d 1052, 1062 (9th Cir. 2013). 27 The U.S. Supreme Court has held that “[as] long as the conditions or degree of 28 confinement to which the prisoner is subjected is within the sentence imposed upon him and is 1 not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an 2 inmate’s treatment by prison authorities to judicial oversight.” Hewitt v. Helms, 459 U.S. 460, 3 468 (1983), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 480-84 (1995). 4 Initially, the law is clear that time spent in administrative segregation and/or disciplinary 5 segregation is the type of condition of confinement ordinarily contemplated by a prisoner’s 6 sentence. Sandin, 515 U.S. at 485 (“Discipline by prison officials in response to a wide range of 7 misconduct falls within the expected parameters of the sentence imposed by a court of law.”); 8 Hewitt, 459 U.S. at 468 (“It is plain that the transfer of an inmate to less amendable and more 9 restrictive quarters for nonpunitive reasons is well within the terms of confinement ordinarily 10 contemplated by a prison sentence. … . Accordingly, administrative segregation is the sort of 11 confinement that inmates should reasonably anticipate receiving at some point in their 12 incarceration.”); Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000) (stating that “unlike a 13 convicted prisoner, a pretrial detainee may have a liberty interest in not being placed in 14 disciplinary segregation”); May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (finding no liberty 15 interest in avoiding placement in disciplinary segregation before a disciplinary hearing). Further, 16 Plaintiff has failed to allege any facts demonstrating that the conditions or degree of disciplinary 17 confinement to which he was subjected was otherwise violative of the Constitution. Therefore, 18 Plaintiff has not established that the Due Process Clause afforded him a protected liberty interest 19 in avoiding confinement in administrative and/or disciplinary segregation without notice of the 20 cause for confinement or a disciplinary hearing. 21 “[H]owever, … a liberty interest in avoiding particular conditions of confinement may 22 arise from state policies or regulations[.]” Wilkinson v. Austin, 545 U.S. 209, 222 (2005). State- 23 created liberty interests are “generally limited to freedom from restraint which, will not exceeding 24 the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause 25 of its own force, … nonetheless imposes atypical and significant hardship on the inmate in 26 relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483-84. 27 Here, Plaintiff relates few facts of his confinement in disciplinary and/or administrative 28 segregation beyond a vague allegation about its length – more than ten days – and the conclusory 1 assertion that he was denied access to the court, the law library, legal documents, books, and 2 paper. However, Plaintiff has not alleged any facts comparing the conditions of his confinement 3 in disciplinary and/or administrative segregation to any other conditions at Kern Valley State 4 Prison, whether in segregation or in the general population. Further, Plaintiff has failed to plead 5 facts establishing the duration of his disciplinary and/or administrative segregation, the degree of 6 restraint imposed, and/or whether his segregation will invariably affect the duration of his 7 sentence. Therefore, Plaintiff has failed to establish that his confinement in disciplinary and/or 8 administrative segregation “present[s] the type of atypical, significant deprivation in which a 9 State might conceivably create a liberty interest.” Sandin, 515 U.S. at 486. Consequently, 10 Plaintiff has not pled a cognizable Fourteenth Amendment due process claim. Despite being 11 previously advised of this deficiency and given leave to amend, Plaintiff has been unable to cure 12 this deficiency. 13 I. Violation of 42 U.S.C. § 1981 14 Plaintiff alleges that Defendants Garcia and Barcia Reign “deliberately[,] or with 15 conscious disregard[,] egregiously denied [Plaintiff the] equal ben[e]fits of all laws and 16 proceeding[s] for the security of his person and property as is enjoyed by Mexican[s.]” (ECF No. 17 48, at 7.) 18 42 U.S.C. § 1981(a) provides, in relevant part, that: “All persons within the jurisdiction of 19 the United States shall have the same right in every State and Territory … to the full and equal 20 benefit of all laws and proceedings for the security of persons and property as it enjoyed by white 21 citizens[.]” Section 1981 “can be violated only be purposeful discrimination,” General Bldg. 22 Contractors Ass’n Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982), and a plaintiff must plausibly 23 allege ‘intentional discrimination on account of race.” Evans v. McKay, 869 F.2d 1341, 1344 24 (9th Cir. 1989). The complaint must set forth “overt acts” of discrimination and contain facts to 25 establish that the defendant’s conduct was motivated by racial animus. Id. at 1345. 26 Here, Plaintiff has failed to allege facts demonstrating that Defendants Garcia and Barcia 27 Reign, motivated by racial animus, committed some overt act or acts that deprived Plaintiff 28 access to any law and/or proceeding that would have allowed him to secure his person and/or his 1 property. Therefore, Plaintiff has not pled a cognizable claim for a violation of 42 U.S.C. § 1981. 2 Despite being previously advised of this deficiency and given leave to amend, Plaintiff has been 3 unable to cure this deficiency. 4 J. Conspiracy in Violation of 42 U.S.C. § 1985(3) 5 Plaintiff alleges that Defendants Garcia and Barcia Reign conspired together in violation 6 of 42 U.S.C. § 1985(3) in order to deprive Plaintiff of the equal protection of the laws based on 7 racial discrimination, to deprive Plaintiff of due process of the law, and to hinder their supervisors 8 from being notified about all of their unconstitutional actions. 9 Section 1985(3) creates a civil action for damages caused by two or more persons who 10 “conspire … for the purpose of depriving” the injured person of “the equal protection of the laws, 11 or of equal privileges and immunities under the laws” and take or cause to be taken “any act in 12 furtherance of the object of such conspiracy.” 42 U.S.C. § 1985(3). The elements of a 1985(3) 13 claim are: “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any 14 person or class of persons of the equal protection of the laws, or of equal privileges and 15 immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person 16 is either injured in his person or property or deprived of any right or privilege of a citizen of the 17 United States.” Fazaga v. FBI, 916 F.3d 1202, 1245 (9th Cir. 2019). 18 In order to adequately allege the first element, Plaintiff must allege specific “facts to 19 support the allegation that defendants conspired together. A mere allegation of conspiracy 20 without factual specificity is insufficient.” Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 21 621, 626 (9th Cir. 1988). The second element requires that some racial or otherwise class-based 22 “invidiously discriminatory animus” behind the conspirators’ actions. Bray v. Alexandria 23 Women’s Health Clinic, 506 U.S. 263, 268-69 (1993). Finally, a plaintiff cannot state a 24 conspiracy claim under § 1985 in the absence of a claim for deprivation of rights under 42 U.S.C. 25 § 1983. See Caldeira v. Cnty. of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989) (holding that “the 26 absence of a section 1983 deprivation of rights precludes a section 1985 conspiracy claim 27 predicated on the same allegations”) 28 Here, first, Plaintiff’s allegations of conspiracy are conclusory and unsupported by any 1 specific facts. There is no indication of how Plaintiff knows that the Defendants conspired 2 against him, nor is there any description of what act(s) the Defendants took in furtherance of the 3 alleged conspiracy. Second, since Plaintiff has failed to allege a cognizable § 1983 claim, 4 Plaintiff’s § 1985(3) claim also fails. Therefore, Plaintiff has not pled a cognizable claim of 5 conspiracy in violation of 42 U.S.C. § 1985(3). Despite being previously advised of this 6 deficiency and given leave to amend, Plaintiff has been unable to cure this deficiency. 7 K. Violation of 42 U.S.C. § 2000a 8 Plaintiff alleges that his civil rights protected by 42 U.S.C. § 2000a were violated. 9 However, 42 U.S.C. § 2000a only prohibits discrimination or segregation in places of 10 public accommodation, which does not include prisons. 42 U.S.C. § 2000a(b); see Clegg v. Cult 11 Awareness Network, 18 F.3d 752 (9th Cir. 1994) (Title II which prohibits discrimination in 12 places of public accommodation covers only places, lodgings, facilities and establishments open 13 to the public); Nance v. Ryan, No. CV 15-0923-PHX-SMM (DKD), 2015 WL 4528909, at *4 (D. 14 Ariz. Jul. 27, 2015) (prisoner’s complaint dismissed for failure to state a claim.) The Court has 15 found no authority to support that state prisons constitute places of public accommodation. 16 Further, state action for purposes of § 2000a(d) means discrimination or segregation carried on 17 (1) under color of any law, statute, ordinance, or regulation, (2) carried on under color of any 18 custom, or usage required or enforced by officials of the state, or (3) required by action of the 19 state. 42 U.S.C. § 2000a(d). Therefore, Plaintiff has not stated a cognizable claim for violation of 20 42 U.S.C. § 2000a. 21 L. State Law Claim for Violation of California’s Unruh Civil Rights Act 22 Plaintiff alleges that Defendants Garcia, Barcia Reign, and Pfeiffer violated California’s 23 Unruh Civil Rights Act when they excluded Plaintiff from prison employment due to his race. 24 California’s Unruh Civil Rights Act provides that “[a]ll persons within the jurisdiction of 25 this state are free and equal, and no matter what their … race, color, ancestry, national origin, … 26 citizenship, … or immigration status are entitled to the full and equal accommodations, 27 advantages, facilities, privileges, or services in all business establishments of every kind 28 whatsoever.” Cal. Civ. Code § 51(b). 1 However, first, prisons are not business establishments under California Civil Code § 51. 2 Wilkins-Jones v. County of Alameda, 859 F. Supp. 2d 1039, 1048-49 (N.D. Cal. 2012); Taormina 3 v. Cal. Dep’t of Corr., 946 F. Supp. 829, 834 (S.D. Cal. 1996). Second, “the Unruh Civil Rights 4 Act has no application to employment discrimination.” Rojo v. Kliger, 52 Cal. 3d 65, 77 (1990); 5 see also Bass v. County of Butte, 458 F.3d 978, 981-83 (9th Cir. 2006). Therefore, Plaintiff has 6 not stated a cognizable claim for a violation of California’s Unruh Civil Rights Act against 7 Defendants Garcia, Barcia Reign, and Pfeiffer. 8 V. Conclusion and Recommendation 9 For the reasons discussed herein, Plaintiff’s second amended complaint fails to state a 10 cognizable claim for relief. Despite being provided with the relevant pleading and legal standards 11 in the Court’s prior orders screening Plaintiff’s original and first amended complaints, Plaintiff 12 has been unable to cure the identified deficiencies and further leave to amend is not warranted. 13 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 14 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed, with 15 prejudice, for failure to state a cognizable claim upon which relief may be granted. 16 These findings and recommendation will be submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 18 days after being served with these findings and recommendation, Plaintiff may file written 19 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 20 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 21 specified time may result in the waiver of the “right to challenge the magistrate’s factual 22 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 23 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 IT IS SO ORDERED. 25

26 Dated: December 19, 2019 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 27

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