(PC) Uhuru v. Shen

• Court: District Court, E.D. California
• Decided: April 16, 2025
• Docket: 2:23-cv-00068
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KOHEN DIALLO E. UHURU, No. 2:23-cv-0068 DC AC P 12 Plaintiff, 13 v. ORDER 14 HANIEL SHEN, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding without counsel, seeks relief pursuant to 42 U.S.C. 18 § 1983; the Prison Rape Elimination Act (“PREA”), 34 U.S.C. §§ 30301-30309; the Civil Rights 19 of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997 et seq.; the Americans with 20 Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12203; and the Religious Land Use and 21 Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq. Plaintiff paid the filing fee 22 in full after the court denied plaintiff’s application to proceed in forma pauperis. In screening of 23 the first amended complaint (“FAC”),1 the court found that plaintiff had stated an excessive force 24 claim against defendant T. Fuller, but had not stated any claims against defendants Shen, 25 Gonzalez, Associate Warden Johnson, Aguilar, Meeker, C. Johnson, Dunkle, Lao, and Does 10- 26

27 1 Before the court could screen the original complaint, plaintiff filed a first amended complaint that superseded his prior filing. See Local Rule 220. As a result, the court screened the FAC, 28 ECF No. 8, instead of the original complaint. 1 16. ECF No. 27 at 3-5. Plaintiff was given the option to proceed immediately on their2 excessive 2 force claim against defendant T. Fuller or file an amended complaint. Id. at 5. Plaintiff elected to 3 file a second amended complaint (“SAC”), ECF No. 28, which is now before the court for 4 screening. 5 I. Statutory Screening of Prisoner Complaints 6 The court is required to screen complaints brought by prisoners seeking relief against “a 7 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 8 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 9 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 10 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 11 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 12 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 13 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 14 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 15 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 16 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 17 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 18 Franklin, 745 F.2d at 1227-28 (citations omitted). 19 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 20 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 21 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 22 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 23 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 24 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 25 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 26 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 27

28 2 Plaintiff uses the pronouns “they,” “thou,” and “their.” ECF No. 32 at 3. 1 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 2 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 3 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 4 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 5 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 6 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 7 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 8 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 9 content that allows the court to draw the reasonable inference that the defendant is liable for the 10 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 11 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 12 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 13 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 14 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 15 II. Factual Allegations in the Second Amended Complaint3 16 Plaintiff, a designated priest of the Nubian Hebrew Israelites who uses gender neutral 17 pronouns, alleges that while they were housed at California State Prison-Sacramento (“CSP- 18 SAC”), defendants Hood, Ortiz, Cassaro, Shen, T. Fuller, Meeker, C. Johnson, Associate Warden 19 Johnson, Dunkle, Lao, and Doe defendants 1-10 violated plaintiff’s rights under the First, Eighth, 20 and Fourteenth Amendments to the U.S. Constitution, PREA, CRIPA, RLUIPA, the ADA, the 21 Transgender Respect, Agency, and Dignity Act (“TRADA”) (Cal. Pen. Code. §§ 2605, 2606), the 22 Unruh Civil Rights Act (“Unruh Act”) (Cal. Civ. Code §§ 51, 52), section 3331(h) of the 23 California Code of Regulations, and several sections of the California Constitution. Id. at 1-5, 7- 24 9. 25 Specifically, plaintiff alleges that defendant Hood violated plaintiff’s rights by placing his 26

27 3 Plaintiff attaches a violation warning (Form COL), the docket report for this case, and a grievance plaintiff filed on January 2, 2025, regarding conduct by individuals not named in this 28 action to the SAC. See ECF No. 32 at 6, 11-19. 1 hand on plaintiff’s naked body for sexual gratification while threatening to spray plaintiff with 2 pepper spray if plaintiff tried to remove defendant Hood’s hand. Id. at 7. 3 Plaintiff also alleges that defendants Ortiz, Cassaro, and four other guards “violated 4 plaintiff’s pronouns and honorifics,” and that, despite plaintiff’s preference to be strip searched 5 only by females and to speak to a doctor beforehand, they ripped off plaintiff’s clothes, conducted 6 a search, and eyeballed, stalked, and gawked at plaintiff’s genitals. Id. Unnamed defendants also 7 watched through video surveillance. Id. 8 Plaintiff further claims that from August 4, 2022, to August 23, 2022, defendants Hood, 9 Shen, T. Fuller, Meeker, C. Johnson, Associate Warden Johnson, Ortiz, Cassaro, Aguilar, and 10 Doe defendants subjected plaintiff to solitary confinement, and defendants Shen, T. Fuller, 11 Meeker, C. Johnson, and Associate Warden Johnson denied plaintiff’s requests for outside 12 exercise. Id. Defendant T. Fuller further violated plaintiff’s rights on August 8, 2022, when T. 13 Fuller beat plaintiff in the head, face, chest and back with a heavy shield, causing pain, injuries, 14 extreme migraine headaches, and blurry vision, and “viciously put [plaintiff] in unauthorized, 15 inappropriate handcuffs which was painful and unjustified.” Id. at 8. Plaintiff alleges that T. 16 Fuller’s actions violated plaintiff’s rights under the ADA and the Eighth Amendment to the U.S. 17 Constitution to be free from cruel and unusual punishment. Id. 18 Plaintiff also alleges that, on August 23, 2022, despite defendant Dunkle and Lao being 19 aware that plaintiff suffered from a visual disability, could not walk without a cane, and that 20 plaintiff had a special cuffing chrono stipulating that plaintiff could only be cuffed by waist chain 21 and not by black box, they inappropriately placed “unauthorized handcuffs with a black lockbox 22 on Plaintiff causing him to stumble, fall, and be in severe chronic pain cutting off his circulation.” 23 Id. 24 Plaintiff further alleges that, to “impede and obstruct the Nubian Hebrew Israelite Faith,” 25 defendants prohibited plaintiff “from group prayers & worship on the Holy Sabbath days” and 26 right “to Preach and Minister to others.” Id. at 9. And that “the Now CDCR Secretary/Director 27 has also acknowledged the Discrimination, Deliberate Indifference, and Denials of Plaintiff’s 28 Constitutional Rights which are freely given to Muslims; Catholics; Jews; Christians; ect [sic] 1 without disdain, hatred, and prejudice . . .” Id. 2 Plaintiff claims that the conduct of defendants Hood, Ortiz, Cassaro, Shen, T. Fuller, 3 Meeker, C. Johnson, Associate Warden Johnson, and the Doe defendants caused plaintiff 4 psychological torture, emotional distress, lack of dopamine and serotonin, and melanin causing 5 apathy, and loss of coordination, dexterity, and illness. Id. at 7. Plaintiff claims that because of 6 T. Fuller’s excessive force, plaintiff also suffered from “a concussion with migraine headaches, 7 blurry vision, tinnitus, chest and back pain with broken skin on ME wrist from inappropriate 8 unclean handcuffs.” Id. at 8. Plaintiff further claims that Dunkle’s and Lao’s conduct caused 9 plaintiff trauma, high blood pressure, threat of stroke, elder abuse, and hatred. Id. Plaintiff 10 further alleges that he suffered mentally and psychologically from denials regarding plaintiff’s 11 religious exercise. Id. at 9. 12 By way of relief, plaintiff seeks monetary and punitive damages, and a permanent 13 injunction. Id. at 10. Plaintiff requests a “Certification, Authorization, and Authentication by 14 Verification that the Practice of the Nubian Hebrew Israelite Faith & Religion is a Bona Fide 15 Religion Pursuant to The Free Exercise and Equal Protection laws under the First and Fourteenth 16 Amendment of the U.S. Constitution.” Id. Plaintiff also request that CDCR “Honor the Nubian 17 Hebrew Israelite holy Fast Days during the entire Month of August, monthly Comunions [sic], 18 Food Sales and Banquets allowed to receive donations for books, musical instruments, with 19 Benevolence & Enlightenment.” Id. 20 III. Claims for Which a Response Will be Required 21 After conducting the screening required by 28 U.S.C. § 1915A(a), the court finds that 22 plaintiff has adequately stated an Eighth Amendment excessive force claim against defendants T. 23 Fuller, and Eighth Amendment deliberate indifference to safety claims against defendants Dunkle 24 and Lao. 25 IV. Failure to State a Claim 26 However, plaintiff fails to state First, Fourth, Eighth, or Fourteenth Amendment claims 27 under the U.S. Constitution, or any claims under PREA, CRIPA, RLUIPA, the ADA, or any state 28 laws or regulations. 1 In general, plaintiff’s SAC suffers from the same flaws as plaintiff’s FAC—the allegations 2 against each of the remaining defendants are far too vague and conclusory to proceed. While 3 plaintiff alleges that defendants Shen, Hood, Associate Warden Johnson, Ortiz, Cassaro, Aguilar, 4 Meeker, C. Johnson, and Doe defendants 1-10 violated his constitutional rights, and refers to 5 vaguely described incidents, plaintiff again fails to provide necessary factual details that would 6 enable the court to determine any claim’s viability. 7 To the extent plaintiff seeks to hold Associate Warden Johnson liable because of his 8 general supervisory responsibilities, plaintiff cannot do so. To be liable, Associate Warden 9 Johnson either needed to personally participate in or direct the alleged deprivation of 10 constitutional rights or know of the violations and fail to prevent them. 11 Plaintiff also fails to adequately link any defendant to his First Amendment free exercise 12 and retaliation claims. Plaintiff does not adequately describe which, if any, defendant(s) 13 specifically deprived plaintiff of their ability to practice their religion, and how each individual 14 defendant(s) affirmative acts or failures to act resulted in the alleged deprivation. Similarly, 15 plaintiff does not adequately state how defendants, or which defendant(s), prohibited plaintiff 16 from group prayers and worship on the Holy Sabbath days and the right to preach and minster to 17 others, or that defendant(s) did so because plaintiff engaged in some protected conduct. 18 Plaintiff’s RLUIPA and Fourteenth Amendment Equal Protection Clause claims also suffer from 19 the same flaws; the SAC does not specify how the specific conduct of any defendant(s) denied 20 plaintiff access to religious services or which defendants intentionally discriminated against 21 plaintiff. 22 The factual allegations in the SAC in support of plaintiff’s Eighth Amendment conditions 23 of confinement claim against Hood, Shen, T. Fuller, Meeker, C. Johnson, associate warden 24 Johnson, Cassaro, Aguilar, and/or any Doe defendants appear to be the same as those alleged and 25 previously rejected by this court. See ECF No. 8 at 7; ECF No. 27 at 2-4. Plaintiff has not pled 26 facts showing that placement in solitary confinement for nineteen days without outside exercise 27 opportunities exceeded the limitation that are permissible for security or other legitimate 28 purposes. 1 Defendant Hood’s verbal threats are insufficient to state an Eighth Amendment violation. 2 To the extent Hood, Ortiz, Cassaro, and Doe defendants were conducting a routine visual body 3 search, such conduct does not violate a prisoners’ Fourth Amendment rights. Nor does eyeballing 4 or gawking at plaintiff’s private parts, in and of itself, constitute an Eighth Amendment violation. 5 Plaintiffs’ additional allegations against Hood, Ortiz, Cassaro and Doe defendants are also 6 insufficient to state a Fourth or Eighth Amendment sexual harassment-based claim. Plaintiff 7 makes nothing more than a conclusory statement that defendant Hood placed his hand on 8 plaintiff’s naked body for sexual gratification. None of the details or context necessary to 9 evaluation of the claim is provided. Plaintiff does not indicate what part or parts of plaintiff’s 10 body defendant Hood touched; whether Hood touched plaintiff during a search or had some other 11 penological reason for such contact (i.e. defendant was trying to stop plaintiff from assaulting 12 staff, or trying to apply or remove handcuffs) or did so solely for the purpose of humiliating, 13 degrading, or demeaning plaintiff; and whether the contact was more than once, brief or 14 prolonged, and/or exceeded what was required to accomplish any penological interest. Similarly, 15 with respect to Ortiz, Cassaro, and Doe defendants, plaintiff provides no information regarding 16 the basis or lack of justification for the search. 17 To the extent plaintiff attempts to state a constitutional violation based on a cross-gender 18 strip search, plaintiff fails to do so because the SAC does not state plaintiff’s gender identity, nor 19 the gender identities of defendants Hood, Ortiz, Cassaro, or Doe defendants. Furthermore, to the 20 extent plaintiff attempts to state an Eighth Amendment failure to protect claim against Ortiz, 21 Cassaro, or Doe defendants, plaintiff fails to do so because plaintiff has not established a 22 sufficiently serious risk of harm for which he needed protection and for which these defendants 23 failed to protect him from. 24 Plaintiff also fails to state any claim under PREA or CRIPA because PREA and CRIPA 25 do not contain a private right of action, nor do they create a right enforceable under § 1983. 26 Moreover, plaintiff cannot maintain any state law claims due to plaintiff’s failure to allege 27 compliance with the Government Claims Act. Nor does plaintiff state cognizable § 1983 claims 28 based on violations of state regulations. 1 Lastly, plaintiff’s ADA claims against defendants T. Fuller, Dunkle, and Lao also fail. 2 Under the ADA, plaintiff cannot sue T. Fuller, Dunkle, and/or Lao in their individual capacities. 3 Plaintiff’s claims against defendants T. Fuller, Dunkle, and Lao in their official capacities also 4 fail because plaintiff does not allege that they were either excluded from participation in or denied 5 benefits of the public entity’s services, programs or activities, or that such exclusion, denial, or 6 discrimination was based on plaintiff’s disability. Plaintiff’s ADA claim appears to be nothing 7 more than a claim that defendants applied handcuffs on plaintiff despite plaintiff’s visual 8 impairments and special cuffing chrono. This is a deliberate indifference claim, not an ADA 9 claim, and is being permitted to proceed as such against defendants Dunkle and Lao. See Section 10 III. Plaintiff, however, has not stated a deliberate indifference claim against defendant T. Fuller 11 for placing handcuffs on plaintiff because plaintiff does not claim T. Fuller knew about plaintiff’s 12 special cuffing chrono and ignored it and, and plaintiff does not allege that T. Fuller’s actions 13 related to the handcuffing resulted in serious risk to plaintiff’s safety. 14 V. Options from Which Plaintiff Must Choose 15 Based on the court’s screening, plaintiff has a choice to make. After selecting an option 16 from the two options listed below, plaintiff must return the attached Notice of Election form to 17 the court within 21 days from the date of this order. 18 The first option available to plaintiff is to proceed immediately against defendant T. 19 Fuller on an Eighth Amendment excessive force claim and Dunkle and Lao on Eighth 20 Amendment deliberate indifference claims. By choosing this option, plaintiff will be 21 agreeing to voluntarily dismiss defendant Shen, Hood, Associate Warden Johnson, Ortiz, 22 Cassaro, Aguilar, Meeker, C. Johnson, and Doe defendants 1-10. The court will proceed to 23 immediately serve the complaint and order a response from defendants Hood, Dunkle, and 24 Lao. 25 The second option available to plaintiff is to file an amended complaint to fix, if 26 possible, the problems described in Section IV against defendants Shen, Hood, Associate 27 Warden Johnson, Ortiz, Cassaro, Aguilar, Meeker, C. Johnson, and Doe defendants 1-10. 28 If plaintiff chooses this option, the court will set a deadline in a subsequent order to give 1 plaintiff time to file an amended complaint. 2 VI. Plain Language Summary of this Order for Party Proceeding Without a Lawyer 3 Some of the allegations in the complaint state claims against the defendants and some do 4 not. You have stated an Eighth Amendment excessive force claim against T. Fuller for beating 5 you on August 8, 2022. You have also stated Eighth Amendment deliberate indifference claims 6 against defendants Dunkle and Lao for handcuffing you with a black lockbox. You have not 7 stated any other claims against T. Fuller, Dunkle, Lao, or any other defendant you have listed in 8 your complaint. 9 You have a choice to make. You may either (1) proceed immediately on your excessive 10 force and deliberate indifference claims against defendants T. Fuller, Dunkle, and Lao and 11 voluntarily dismiss the other claims; or, (2) try to amend the complaint. To decide whether to 12 amend your complaint, the court has attached the relevant legal standards that may govern your 13 claims for relief. See Attachment A. Pay particular attention to these standards if you choose to 14 file an amended complaint, including the standard for properly joined claims and parties. 15 CONCLUSION 16 In accordance with the above, IT IS HEREBY ORDERED that: 17 1. Plaintiff’s claims against defendants Shen, Hood, Associate Warden Johnson, Ortiz, 18 Cassaro, Aguilar, Meeker, C. Johnson, and Doe defendants 1-10 do not state claims for which 19 relief can be granted. 20 2. Plaintiff fails to state First, Fourth, or Fourteenth Amendment claims, or any claims 21 under PREA, CRIPA, RLUIPA, the ADA, and any California state laws or regulations against 22 any defendant. 23 3. Plaintiff also fails to state an Eighth Amendment conditions of confinement claim 24 against any defendant, or failure to protect claims against Ortiz, Cassaro, or Doe defendants. 25 4. Plaintiff has the option to proceed immediately on his excessive force claim against 26 defendant T. Fuller and failure to protect deliberate indifference claims against defendants Dunkle 27 and Lao as set forth in Section III above, or to file an amended complaint. 28 5. Within 21 days from the date of this order, plaintiff shall complete and return the 1 | attached Notice of Election form notifying the court whether he wants to proceed on the screened 2 || complaint or whether he wants to file an amended complaint. 3 6. If plaintiff does not return the form, the court will assume that he is choosing to 4 || proceed on the second amended complaint as screened and will recommend dismissal without 5 || prejudice of defendants Shen, Hood, Associate Warden Johnson, Ortiz, Cassaro, Aguilar, Meeker, 6 | C. Johnson, and Doe defendants 1-10. 7 || DATED: April 16, 2025 ~ g Httven— Lhar—e_ ALLISON CLAIRE 9 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 KOHEN DIALLO E. UHURU, No. 2:23-cv-0068 DC AC P 11 Plaintiff, 12 v. NOTICE OF ELECTION 13 HANIEL SHEN, et al., 14 Defendants. 15 16 Check one: 17 _____ Plaintiff wants to proceed immediately on his excessive force claim against defendant T. 18 Fuller and failure to protect deliberate indifference claims against defendants Dunkle and 19 Lao without amending the complaint. Plaintiff understands that by choosing this option, 20 (1) defendants Shen, Hood, Associate Warden Johnson, Ortiz, Cassaro, Aguilar, Meeker, 21 C. Johnson, and Doe defendants 1-10, (2) First, Fourth, and Fourteenth Amendment 22 claims, and claims under PREA, CRIPA, RLUIPA, the ADA, and any California state 23 laws or regulations against any defendant, and (3) Eighth Amendment conditions of 24 confinement claims against any defendant, will be voluntarily dismissed without prejudice 25 pursuant to Federal Rule of Civil Procedure 41(a). 26 _____ Plaintiff wants time to file an amended complaint. 27 DATED:_______________________

28 Kohen Diallo E. Uhuru, Plaintiff pro se 1 Attachment A 2 This Attachment provides, for informational purposes only, the legal standards that may 3 apply to your claims for relief. Pay particular attention to these standards if you choose to file an 4 amended complaint. 5 I. Legal Standards Governing Amended Complaints 6 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 7 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 8 423 U.S. 362, 370-71 (1976). Also, the complaint must specifically identify how each named 9 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 10 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 11 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 12 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 13 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 14 268 (9th Cir. 1982) (citations omitted). 15 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 16 his amended complaint complete. See Local Rule 220. This is because, as a general rule, an 17 amended complaint replaces the prior complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) 18 (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 19 2012). Therefore, in an amended complaint, every claim and every defendant must be included. 20 II. Legal Standards Governing Substantive Claims for Relief 21 A. Section 1983 22 Section 1983 provides in relevant part: 23 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of 24 Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the 25 deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action 26 at law, suit in equity, or other proper proceeding for redress . . . . 27 42 U.S.C. § 1983. Accordingly, “the requirements for relief under [§] 1983 have been articulated 28 as: (1) a violation of rights protected by the Constitution or created by federal statute, (2) 1 proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.” Crumpton v. 2 Gates, 947 F.2d 1418, 1420 (9th Cir. 1991) (emphasis added). 3 An officer’s violation of state laws and/or regulations is not grounds for a § 1983 claim. 4 See Case v. Kitsap County Sheriff's Dept., 249 F.3d 921, 930 (9th Cir. 2001) (quoting Gardner v. 5 Howard, 109 F.3d 427, 430 (8th Cir 1997) (“[T]here is no § 1983 liability for violating prison 6 policy. [Plaintiff] must prove that [the official] violated his constitutional right . . .”)). Violations 7 of state law and regulations cannot be remedied under § 1983 unless they also violate a federal 8 constitutional or statutory right. See Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) 9 (section 1983 claims must be premised on violation of federal constitutional right); Sweaney v. 10 Ada Cty., Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (section 1983 creates cause of action for 11 violation of federal law); Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370-71 (9th Cir. 1996) 12 (federal and state law claims should not be conflated; “[t]o the extent that the violation of a state 13 law amounts the deprivation of a state-created interest that reaches beyond that guaranteed by the 14 federal Constitution, Section 1983 offers no redress”). 15 B. Personal Involvement and Supervisory Liability 16 The civil rights statute requires that there be an actual connection or link between the 17 actions of the defendants and the deprivation alleged to have been suffered by 18 plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 19 423 U.S. 362 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 20 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 21 act, participates in another’s affirmative acts or omits to perform an act which he is legally 22 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 23 F.2d 740, 743 (9th Cir. 1978) (citation omitted). In order to state a claim for relief under section 24 1983, plaintiff must link each named defendant with some affirmative act or omission that 25 demonstrates a violation of plaintiff's federal rights. 26 Government officials may not be held liable for the unconstitutional conduct of their 27 subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 28 (2009) (“In a § 1983 suit . . . the term ‘supervisory liability’ is a misnomer. Absent vicarious 1 liability, each Government official, his or her title notwithstanding is only liable for his or her 2 own misconduct.”). When the named defendant holds a supervisory position, the causal link 3 between the defendant and the claimed constitutional violation must be specifically alleged; that 4 is, a plaintiff must allege some facts indicating that the defendant either personally participated in 5 or directed the alleged deprivation of constitutional rights or knew of the violations and failed to 6 act to prevent them. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Taylor v. List, 880 7 F.2d 1040, 1045 (9th Cir. 1989); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 8 C. Doe Defendants 9 Although the use of Doe defendants is acceptable to withstand dismissal at the initial 10 screening stage, service of process for these defendants will not be ordered until such time as 11 plaintiff has: 1) identified them by their real names through discovery; and, 2) filed a motion to 12 amend the complaint to substitute their real names. See Mosier v. Cal. Dep’t of Corr. & Rehab., 13 2012 WL 2577524, at *3, 2012 U.S. Dist. LEXIS 92286 (E.D. Cal. July 2, 2012); Robinett v. 14 Corr. Training Facility, 2010 WL 2867696, at *4, 2010 U.S. Dist. LEXIS 76327 (N.D. Cal. July 15 20, 2010). Allegations against Doe defendants should identify each Doe defendant separately 16 (e.g., Doe 1, Doe 2, etc.) and explain what each individual did to violate plaintiff's rights. 17 D. Joinder of Claims and Parties 18 A plaintiff may properly assert multiple claims against a single defendant in a civil action. 19 Fed. Rule Civ. P. 18. In addition, a plaintiff may join multiple defendants in one action where 20 “any right to relief is asserted against them jointly, severally, or in the alternative with respect to 21 or arising out of the same transaction, occurrence, or series of transactions and occurrences” and 22 “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 23 20(a)(2). However, unrelated claims against different defendants must be pursued in separate 24 lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This rule is intended “not only 25 to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to 26 ensure that prisoners pay the required filing fees—for the Prison Litigation Reform Act limits to 3 27 the number of frivolous suits or appeals that any prisoner may file without prepayment of the 28 required fees. 28 U.S.C. § 1915(g).” Id. 1 E. First Amendment Free Exercise Clause 2 “The right to exercise religious practices and beliefs does not terminate at the prison door. 3 The free exercise right, however, is necessarily limited by the fact of incarceration, and may be 4 curtailed to achieve legitimate correctional goals or to maintain prison security. We determine 5 whether these competing interests are balanced properly by applying a reasonableness 6 test: When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if 7 it is reasonably related to legitimate penological interests.” McElyea v. Babbitt, 833 F.2d 196, 8 197 (9th Cir. 1987) (citations and internal quotation marks omitted); see also Shakur v. Schriro, 9 514 F.3d 878, 889 (9th Cir. 2008) (“Once the plaintiff establishes that the challenged state action 10 substantially burdens his religious exercise, the government bears the burden of establishing that 11 the regulation serves a compelling government interest and is the least restrictive means of 12 achieving that interest.”). 13 “A person asserting a free exercise claim must show that the government action in 14 question substantially burdens the person’s practice of her religion. A substantial burden places 15 more than an inconvenience on religious exercise; it must have a tendency to coerce individuals 16 into acting contrary to their religious beliefs or exert substantial pressure on an adherent to 17 modify his behavior and to violate his beliefs.” Jones v. Williams, 791 F.3d 1023, 1031-32 (9th 18 Cir. 2015) (citations, internal quotation marks, and alterations omitted). 19 F. First Amendment Retaliation 20 “Within the prison context, a viable claim of First Amendment retaliation entails five 21 basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) 22 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 23 exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate 24 correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (citations omitted). 25 Filing an inmate grievance is a protected action under the First Amendment. Bruce v. Ylst, 351 26 F.3d 1283, 1288 (9th Cir. 2003). Harm that “would chill a ‘person of ordinary firmness’ from 27 complaining” is sufficient to find an “adverse action.” Shepard v. Quillen, 840 F.3d 686, 691 (9th 28 Cir. 2016) (quoting Rhodes, 408 F.3d at 569) (placement in administrative segregation or even 1 threat to do so on its own amounts to adverse action satisfying the first element). The mere threat 2 of harm can be a sufficiently adverse action to support a retaliation claim. Id. at 688-89. 3 G. Fourth Amendment – Strip Searches 4 The Fourth Amendment protects against unreasonable searches, and that right is not lost 5 to convicted inmates. Jordan v. Gardner, 986 F.2d 1521, 1524 (9th Cir. 1993). However, 6 “incarcerated prisoners retain a limited right to bodily privacy.” Michenfelder v. Sumner, 860 7 F.2d 328, 333 (9th Cir. 1988) (emphasis added). 8 A detention facility’s strip-search policy is analyzed using the test for reasonableness 9 outlined in Bell v. Wolfish, as “[t]he Fourth Amendment prohibits only unreasonable searches.” 10 Bull v. City and County of San Francisco, 595 F.3d 964, 971-72 (9th Cir. 2010) (alteration in 11 original) (internal quotation marks omitted) (quoting Bell, 441 U.S. at 558). Under Bell, the court 12 must balance “the need for the particular search against the invasion of personal rights that the 13 search entails.” 441 U.S. at 559. To do so, courts must consider “[1] the scope of the particular 14 intrusion, [2] the manner in which it is conducted, [3] the justification for initiating it, and [4] the 15 place in which it is conducted.” Id.; see also Byrd v. Maricopa Cnty. Bd. of Supervisors, 845 16 F.3d 919, 922-24 (9th Cir. 2017) (same test for whether a cross-gender strip search violates the 17 Fourth Amendment). 18 “Correctional officials have a significant interest in conducting a thorough search as a 19 standard part of the intake process,” and the Supreme Court has held that all detainees, when 20 joining a general detained population, can be subject to strip searches even without reasonable 21 suspicion that a specific individual is concealing weapons or other contraband. Florence v. Bd. of 22 Chosen Freeholders, 566 U.S. 318, 30-39 (2012). Further, strip searches that are limited to 23 “visual inspection,” even if “invasive and embarrassing,” can be resolved in favor of the 24 institution. Bull, 595 F.3d at 975 (holding that visual strip searches that are held in a 25 “professional manner and in a place that afforded privacy” and done to prevent the smuggling of 26 contraband did not violate Fourth Amendment); Bell, 441 U.S. at 558 (routine visual body cavity 27 searches do not violate prisoners’ Fourth Amendment rights). However, searches done for the 28 purpose of harassment are not constitutionally valid—the Supreme Court has held that 1 “intentional harassment of even the most hardened criminals cannot be tolerated” by the Fourth 2 Amendment’s protections, and that they may even violate the Eighth Amendment. Hudson v. 3 Palmer, 468 U.S. 517, 528, 530 (1984); see also Michenfelder, 860 F.2d at 332 (strip searches 4 that are “excessive, vindictive, harassing, or unrelated to any legitimate penological interest” may 5 be unconstitutional). Strip searches where “a prison staff member, acting under color of law and 6 without legitimate penological justification, touched the prisoner in a sexual manner or otherwise 7 engaged in sexual conduct for the staff member’s own sexual gratification, or for the purpose of 8 humiliating, degrading, or demeaning the prisoner,” Bearchild v. Cobban, 947 F.3d 1130, 1144 9 (9th Cir. 2020), violate both the Fourth and Eighth Amendments. 10 “[C]ross-gender strip searches in the absence of an emergency violate an inmate’s right 11 under the Fourth Amendment to be free from unreasonable searches.” Byrd v. Maricopa Cnty. 12 Sheriff’s Dep’t, 629 F.3d 1135, 1146 (9th Cir. 2011). 13 H. Eighth Amendment – Excessive Force 14 The Eighth Amendment prohibits prison officials from inflicting cruel and unusual 15 punishment on inmates which has been defined as “the unnecessary and wanton infliction of 16 pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). “[W]henever prison officials stand accused 17 of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the 18 core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore 19 discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillan, 503 U.S. 1, 7 20 (1992). The court’s inquiry into an excessive force claim focuses on the extent of the prisoner’s 21 injury, the need for application of force, the relationship between that need and the amount of 22 force used, the threat reasonably perceived by the responsible officials, and any efforts made to 23 temper the severity of a forceful response. Hudson, 503 U.S. at 7 (1992) (quotation marks and 24 citations omitted). While the absence of a serious injury is relevant to the Eighth Amendment 25 inquiry, it does not end it. Hudson, 503 U.S. at 7. The malicious and sadistic use of force to 26 cause harm always violates contemporary standards of decency in violation of the Eighth 27 Amendment. Whitley, 475 U.S. at 327. 28 //// 1 I. Eighth Amendment - Verbal Threats 2 “A mere threat may not state a cause of action” under the Eighth Amendment. Gaut v. 3 Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (per curiam) (a “mere naked threat” from prison guards 4 does not violate the Eighth Amendment; it “trivializes the Eighth Amendment to believe 5 a threat constitutes a constitutional wrong”); see also Corales v. Bennett, 567 F.3d 554, 564-65 6 (9th Cir. 2009) (In Gaut, we found “no case that squarely holds a threat to do an act prohibited by 7 the Constitution is equivalent to doing the act itself.”) 8 J. Eighth Amendment – Failure to Protect 9 “[A] prison official violates the Eighth Amendment only when two requirements are met. 10 First, the deprivation alleged must be, objectively, sufficiently serious; a prison official’s act or 11 omission must result in the denial of the minimal civilized measure of life’s necessities.” Farmer 12 v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citations omitted). Second, 13 the prison official must subjectively have a sufficiently culpable state of mind, “one of deliberate 14 indifference to inmate health or safety.” Id. (internal quotation marks and citations omitted). 15 The official is not liable under the Eighth Amendment unless he “knows of and disregards an 16 excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). He 17 must then fail to take reasonable measures to lessen the substantial risk of serious harm. Id. at 18 847. Negligent failure to protect an inmate from harm is not actionable under § 1983. Id. at 835. 19 K. Eighth Amendment – Conditions of Confinement 20 In order for a prison official to be held liable for alleged unconstitutional conditions of 21 confinement, the prisoner must allege facts that satisfy a two-prong test. Peralta v. Dillard, 744 22 F.3d 1076, 1082 (9th Cir. 2014) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The first 23 prong is an objective prong, which requires that the deprivation be “sufficiently serious.” Lemire 24 v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (citing Farmer, 511 U.S. at 25 834). In order to be sufficiently serious, the prison official’s “act or omission must result in the 26 denial of the ‘minimal civilized measure of life’s necessities.” Lemire, 726 F.3d at 1074. The 27 objective prong is not satisfied in cases where prison officials provide prisoners with “adequate 28 shelter, food, clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 1 726, 731 (9th Cir. 2000) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). 2 “[R]outine discomfort inherent in the prison setting” does not rise to the level of a constitutional 3 violation. Johnson, 217 F.3d at 732 (“[m]ore modest deprivations can also form the objective 4 basis of a violation, but only if such deprivations are lengthy or ongoing”). Rather, extreme 5 deprivations are required to make out a conditions of confinement claim, and only those 6 deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to 7 form the basis of an Eighth Amendment violation. Farmer, 511 U.S. at 834; Hudson v. 8 McMillian, 503 U.S. 1, 9 (1992). The circumstances, nature, and duration of the deprivations are 9 critical in determining whether the conditions complained of are grave enough to form the basis 10 of a viable Eighth Amendment claim. Johnson, 217 F.3d at 731. 11 The second prong focuses on the subjective intent of the prison official. Peralta, 774 F.3d 12 at 1082 (9th Cir. 2014) (citing Farmer, 511 U.S. at 837). The deliberate indifference standard 13 requires a showing that the prison official acted or failed to act despite the prison official’s 14 knowledge of a substantial risk of serious harm to the prisoner. Id. (citing Farmer, 511 U.S. at 15 842); see also Redman v. County. of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991). Mere 16 negligence on the part of the prison official is not sufficient to establish liability. Farmer, 511 17 U.S. at 835. 18 Exercise has been recognized as “one of the basic human necessities protected by the 19 Eighth Amendment.” Norbert v. City and County of San Francisco, 10 F.4th 918, 928 (9th Cir. 20 2021) (citing May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997)). “Deprivation of outdoor 21 exercise violates the Eighth Amendment rights of inmates confined to continuous and long-term 22 segregation.” Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (citing Spain v. Procunier, 600 23 F.2d 189, 199 (9th Cir. 1979)), amended by 135 F.3d 1318 (9th Cir. 1998). Still, “a temporary 24 denial of outdoor exercise with no medical effects is not a substantial deprivation.” May v. 25 Baldwin, 109 F.3d 557, 565 (9th Cir. 1997); see also Noble v. Adams, 636 F.3d 525, 531 (9th 26 Cir. 2011) (concluding prison officials were entitled to qualified immunity from § 1983 claim that 27 post-riot lockdown of prison resulted in denial of Eighth Amendment right to exercise); Norwood 28 v. Vance, 591 F.3d 1062, 1070 (9th Cir. 2010) (recognizing that temporary denial of outdoor 1 exercise with no medical effects is not a substantial deprivation); Frost v. Agnos, 152 F.3d 1124, 2 1130 (9th Cir. 1998). Moreover, prison officials may restrict outdoor exercise based on weather, 3 unusual circumstances, or disciplinary needs. See Spain, 600 F.2d at 199-200. 4 In determining whether prison officials are providing constitutionally adequate outdoor 5 exercise time requires an evaluation of the totality of the circumstances, including other 6 opportunities for indoor recreation, the length of time the inmate is held under the conditions, 7 whether the inmate has contact with others, whether disciplinary measures impact the conditions, 8 and whether the inmate has opportunities for training or rehabilitation programs. Norbert, 10 9 F.4th at 929-32. 10 L. Eighth Amendment Sexual Abuse and Harassment 11 This Eighth Amendment legal standard applies to sexual abuse and harassment claims. 12 Wood v. Beauclair, 692 F.3d 1041, 1045-47 (9th Cir. 2012) (citing Hudson v. McMillian, 503 13 U.S. 1, 8 (1992)). “Sexual harassment or abuse of an inmate by a corrections officer is a violation 14 of the Eighth Amendment.” Id. at 1046; see also Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th 15 Cir. 2000). However, “not ‘every malevolent touch by a prison guard gives rise to a federal cause 16 of action.’” Watison v. Carter, 668 F.3d 1108, 1113 (9th Cir. 2012) (quoting Hudson, 503 U.S. at 17 9). Additionally, allegations of sexual harassment that do not involve touching are not 18 “sufficiently serious” to sustain an Eighth Amendment claim. Somers v. Thurman, 109 F.3d 614, 19 624 (9th Cir. 1997) (“To hold that gawking, pointing, and joking violates the prohibition against 20 cruel and unusual punishment would trivialize the objective component of the Eighth Amendment 21 test and render it absurd.”). 22 The Ninth Circuit has held that a prisoner states a viable Eighth Amendment claim where 23 he or she “proves that a prison staff member, acting under color of law and without legitimate 24 penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual 25 conduct for the staff member’s own sexual gratification, or for the purpose of humiliating, 26 degrading, or demeaning the prisoner.” Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 27 2020). “[W]here the allegation is that a guard’s conduct began as an invasive procedure that 28 served a legitimate penological purpose, the prisoner must show that the guard’s conduct 1 exceeded the scope of what was required to satisfy whatever institutional concern justified the 2 initiation of the procedure.” Id. at 1145. “Such a showing will satisfy the objective and 3 subjective components of an Eighth Amendment claim.” Id. 4 Allegations of one incident of brief touching, without more, is not sufficiently serious to 5 state an Eighth Amendment claim. See Watison v. Carter, 668 F.3d 1108, 1112-14 (9th Cir. 6 2012) (affirming dismissal of Eighth Amendment sexual harassment claim against a correctional 7 officer who allegedly entered plaintiff’s cell while plaintiff was on the toilet, rubbed his thigh 8 against plaintiff’s thigh and “began smiling in a sexual contact [sic],” then left plaintiff’s cell 9 laughing); see also Berryhill v. Schriro, 137 F.3d 1073, 1076 (9th Cir. 1998) (“[E]ven outside the 10 context of a search, if a defendant is alleged to have grabbed a plaintiff’s buttocks for a few 11 seconds, the claim does not give rise to an Eighth Amendment violation.”). 12 Cross-gender body searches can constitute an Eighth Amendment violation. Jordan v. 13 Gardner, 986 F.2d 1521, 1525-28 (9th Cir. 1993) (finding cross-gender body search policy 14 constituted unnecessary “infliction of pain” under the Eighth Amendment where women inmates 15 had “shocking histories of verbal, physical, and, in particular, sexual abuse” by men); but see 16 Somers v. Thurman, 109 F.3d 614, 622-24 (9th Cir. 1997) (concluding that allegations that 17 female guards conducted visual searches of a male inmate or saw the male inmate nude are 18 insufficient, by themselves, to state a claim under the Eighth Amendment). 19 M. Fourteenth Amendment - Equal Protection Clause 20 The Fourteenth Amendment’s Equal Protection Clause requires the State to treat all 21 similarly situated people equally. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 22 (1985) (citation omitted). “To state a claim for violation of the Equal Protection Clause, a 23 plaintiff must show that the defendant acted with an intent or purpose to discriminate against him 24 based upon his membership in a protected class.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th 25 Cir. 2003) (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). Alternatively, a 26 plaintiff may state an equal protection claim if he shows similarly situated individuals were 27 intentionally treated differently without a rational relationship to a legitimate government 28 purpose. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citations omitted). 1 N. Americans with Disabilities Act 2 “The ADA contains five titles: Employment (Title I), Public Services (Title II), Public 3 Accommodations and Services Operated by Private Entities (Title III), Telecommunications 4 (Title IV), and Miscellaneous Provisions (Title V).” See Americans with Disability Act of 1990, 5 Pub.L. No. 101-336, 104 Stat. 327, 327-28 (1990). Title II of the ADA applies to inmates within 6 state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998). To state a 7 claim for violation of Title II of the ADA, a plaintiff must allege four elements: 8 (1) [H]e is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public 9 entity’s services, programs, or activities; (3) he was either excluded from participation in or denied the benefits of the public entity’s 10 services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of 11 benefits, or discrimination was by reason of [his] disability. 12 O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007); see also Thompson v. 13 Davis, 295 F.3d 890, 895 (9th Cir. 2002); Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 14 2001). 15 “A plaintiff can allege disability discrimination in the provision of inmate services, 16 programs, or activities under the ADA by pleading either (1) discrimination based on disparate 17 treatment or impact, or (2) denial of reasonable modifications or accommodations.” Cravotta v. 18 County of Sacramento, No. 2:22-cv-0167 DJC AC, 2024 WL 645705, at *7, 2024 U.S. Dist. 19 LEXIS 26740, at *21 (E.D. Cal. Feb. 15, 2024); see Dunlap v. Ass’n of Bay Area Gov’ts, 996 F. 20 Supp. 962, 965 (N.D. Cal. 1998) (“[T]he ADA not only protects against disparate treatment, it 21 also creates an affirmative duty in some circumstances to provide special, preferred treatment, or 22 ‘reasonable accommodation.’”). To support such a disparate impact claim, a plaintiff must 23 demonstrate that the policy has the “effect of denying meaningful access to public services.” 24 K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1102 (9th Cir. 2013). Although 25 § 12132 does not expressly provide for reasonable accommodations, the implementing 26 regulations provide that “[a] public entity shall make reasonable modifications in policies, 27 practices, or procedures when the modifications are necessary to avoid discrimination on the basis 28 of disability, unless the public entity can demonstrate that making the modifications would 1 fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i); 2 see also Pierce v. County of Orange, 526 F.3d 1190, 1215 (9th Cir. 2008). 3 “[I]nsofar as Title II [of the ADA] creates a private cause of action for damages against 4 the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates 5 state sovereign immunity.” United States v. Georgia, 546 U.S. 151, 159 (2006) (emphasis in 6 original). The proper defendant in an ADA action is the public entity responsible for the alleged 7 discrimination. United States v. Georgia, 546 U.S. 151, 153 (2006). State correctional facilities 8 are “public entities” within the meaning of the ADA. See 42 U.S.C. § 12131(1)(A) & (B); Penn. 9 Dept. of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998); Armstrong v. Wilson, 124 F.3d 1019, 1025 10 (9th Cir. 1997). ADA claims may not be brought against state officials in their individual 11 capacities. Stewart v. Unknown Parties, 483 F. App’x 374, 374 (9th Cir. 2012) (citing Lovell v. 12 Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002)); Garcia v. S.U.N.Y. Health Scis. Ctr. of 13 Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (“[N]either Title II of the ADA nor § 504 of the 14 Rehabilitation Act provides for individual capacity suits against state officials.” (citations 15 omitted)). 16 Compensatory damages are available under the ADA when plaintiff demonstrates that the 17 discrimination he experienced was the result of deliberate indifference, which “requires both 18 knowledge that a harm to a federally protected right is substantially likely, and a failure to act 19 upon that likelihood.” Duvall, 260 F.3d at 1138-39 (citations omitted). “When the plaintiff has 20 alerted the public entity to his need for accommodation . . ., the public entity is on notice that an 21 accommodation is required, and the plaintiff has satisfied the first element of the deliberate 22 indifference test.” Id. at 1139. “[I]n order to meet the second element of the deliberate 23 indifference test, a failure to act must be a result of conduct that is more than negligent, and 24 involves an element of deliberateness.” Id. (citations omitted). 25 Treatment, or lack of treatment, concerning plaintiff’s medical condition does not provide 26 a basis upon which to impose liability under the ADA. “The ADA prohibits discrimination 27 because of disability, not inadequate treatment for disability.” Simmons v. Navajo County, 609 28 F.3d 1011, 1022 (9th Cir. 2010) (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996)). 1 O. Religious Land Use and Institutionalized Persons Act 2 RLUIPA prohibits prison officials from substantially burdening a prisoner’s “‘religious 3 exercise unless the burden furthers a compelling governmental interest and does so by the least 4 restrictive means.’” Alvarez v. Hill, 518 F.3d 1152, 1156 (9th Cir. 2008) (internal quotations and 5 citations omitted). The plaintiff bears the initial burden of demonstrating that an institution’s 6 actions have placed a substantial burden on plaintiff’s free exercise of religion. 7 To state a cognizable claim under RLUIPA, plaintiff must specify how the defendant 8 denied him access to religious services. Walker v. Beard, 789 F.3d 1125, 1134 (9th Cir. 2015) 9 (“To state a claim under RLUIPA, a prisoner must show that: (1) he takes part in a ‘religious 10 exercise,’ and (2) the State’s actions have substantially burdened that exercise.” (citation 11 omitted)). “RLUIPA does not define ‘substantial burden,’ but [the Ninth Circuit] has held that ‘a 12 substantial burden on religious exercise must impose a significantly great restriction or onus upon 13 such exercise.’” Hartmann, 707 F.3d 1114, 1124-25 (9th Cir. 2013) (quoting San Jose Christian 14 Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). With respect to challenges to 15 institutional policies, the Ninth Circuit “has held that a substantial burden occurs ‘where the state 16 . . . denies [an important benefit] because of conduct mandated by religious belief, thereby putting 17 substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Id. at 1125 18 (alteration in original) (quoting Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005)). 19 “If the prisoner satisfies those elements, then the State must prove its actions were the 20 least restrictive means of furthering a compelling governmental interest.” Walker, 789 F.3d at 21 1134 (citation omitted). 22 Plaintiff is advised that monetary damages are not available under RLUIPA against state 23 officials sued in their individual capacities. See Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 24 2015) (“RLUIPA does not authorize suits for damages against state officials in their individual 25 capacities because individual state officials are not recipients of federal funding and nothing in 26 the statute suggests any congressional intent to hold them individually liable.”). RLUIPA only 27 authorizes suits against a person in his or her official or governmental capacity. See Wood v. 28 Yordy, 753 F.3d 899, 904 (9th Cir. 2014). 1 P. Prison Rape Elimination Act (“PREA”) 2 “In order to seek redress through § 1983, . . . a plaintiff must assert the violation of a 3 federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340 4 (1997) (emphasis in original) (citing Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 5 106 (1989). The PREA, 42 U.S.C. § 15601-15609, “authorizes the reporting of incidents of rape 6 in prison, allocation of grants, and creation of a study commission,” but there is nothing in the 7 PREA to indicate that it created a private right of action, enforceable under § 1983 or 8 otherwise. Johnson v. Garrison, 859 Fed. App’x 863, 863-64 (10th Cir. 2021); McPherson v. 9 Carpenter, No. 2:2-cv-0202 DC CSK, 2025 WL 745819, at *2 [LEXIS], (E.D. Cal. Mar. 7, 2025); 10 Porter v. Jennings, No. 1:10-cv-01811-AWI-DLB PC, 2012 WL 1434986, at *1, 2012 U.S. Dist. 11 LEXIS 58021, at *3 (E.D. Cal. Apr. 25, 2012) (collecting cases). Since PREA itself contains no 12 private right of action, there is no corresponding right to enforceable under § 1983. See Graham 13 v. Connor, 490 U.S. 386, 393-94 (1989) (“Section 1983 . . . provides a method for vindicating 14 federal rights conferred elsewhere.”). 15 Q. Civil Rights of Institutionalized Persons Act (“CRIPA”) 16 Section 1997a, which is part of the Civil Rights of Institutionalized Persons Act 17 (“CRIPA”), 42 U.S.C. § 1997 et seq., does not create a private right of action. See McRorie v. 18 Shimoda, 795 F.2d 780, 782 n.3 (9th Cir. 1986) (“McRorie also requested relief under 42 U.S.C. 19 §§ 1997–1997j, which authorize the United States Attorney General to institute civil actions 20 against certain institutions for violating the civil rights of persons confined or residing therein. 21 We affirm the district court dismissal of this claim because 42 U.S.C. § 1997j precludes a private 22 cause of action under these sections.”); United States Dep’t of Justice Hostage Rescue Team v. 23 Cal. Dep’t of Corr. & Rehab., No. 2:22-cv-3134-JVS-JC, 2022 WL 4451868, *5, 2022 U.S. Dist. 24 LEXIS 173315, at *11 (C.D. Cal. Aug. 10, 2022) (“CRIPA does not authorize a private right of 25 action”), report and recommendation accepted by, 2022 WL 4448902, 2022 U.S. Dist. LEXIS 26 172886 (C.D. Cal. Sept. 23, 2022); Montezello v. Pesce, No. 2:21-cv-0906-KJM-EFB (PC), 2022 27 WL 17584384, at *1, 2022 U.S. Dist. LEXIS 226127, at *1 (E.D. Cal. Dec. 12, 2022). 28 //// 1 R. State Law Claims 2 Under the California Government Claims Act, no action for damages may be commenced 3 against a public employee or entity unless a written claim was timely presented (within six 4 months after the challenged incident) and acted upon before filing suit. See Cal. Govt. Code 5 §§ 905, 945.4, 950.2. The resulting suit must “allege facts demonstrating or excusing compliance 6 with the claim presentation requirements” or the state law claim is subject to dismissal. State of 7 California v. Superior Ct., 32 Cal.4th 1234, 1239 (2004). “The requirement that a plaintiff must 8 affirmatively allege compliance with the [Government Claims Act] applies in federal court.” 9 Butler v. Los Angeles County, 617 F. Supp. 2d 994, 1001 (C.D. Cal. 2008). 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28