(PC) Walker v. Arnold

• Court: District Court, E.D. California
• Decided: May 4, 2023
• Docket: 2:19-cv-00185
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DERIK NATHANIEL WALKER, No. 2:19-cv-0185 TLN AC P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 E. ARNOLD, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 18 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Plaintiff’s second amended complaint (“SAC”), ECF No. 31, is now before the court for 21 screening. This is the third complaint to have been screened in this case. See ECF Nos. 1, 16 22 (original complaint and first screening); 20, 28 (first amended complaint and second screening); 23 31 (second amended complaint). For the reasons stated below, the undersigned will recommend 24 that this action be dismissed for failure to state a claim upon which relief may be granted. 25 I. STATUTORY SCREENING OF COMPLAINT 26 The court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 1 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 2 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). A 3 claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. 4 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 5 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 6 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639, 7 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as 8 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 9 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 10 Franklin, 745 F.2d at 1227-28 (citations omitted). 11 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 12 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 13 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 14 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 15 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 16 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 17 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 18 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 19 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 20 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 21 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 22 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 23 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 24 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 25 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 26 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 27 content that allows the court to draw the reasonable inference that the defendant is liable for the 28 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 1 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 2 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 3 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 4 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 5 II. SECOND AMENDED COMPLAINT 6 The SAC names four individuals as defendants, all of whom are (or were) employed at 7 California State Prison – Solano (“CSP-Solano”): Correctional Officers K. Fox and J. Nixon, 8 Correctional Lieutenant J. Lee, and Warden E. Arnold. ECF No. 31 at 2-3. Plaintiff also brings a 9 claim against the Solano County Sheriff’s Department. Id. at 16. All claims arise from prison 10 disciplinary actions, and an ensuing criminal prosecution, that followed the discovery of 11 controlled substances in the prison laundry facility where plaintiff worked. 12 III. DISCUSSION 13 The SAC presents five claims, addressed in turn below, each of which is stated against a 14 different defendant and each of which asserts multiple constitutional violations. For the 15 following reasons, none of allegations of the operative complaint support claims upon which 16 relief may be granted. Accordingly, the complaint should be dismissed. 17 A. Claim One: Defendant Fox 18 1. Allegations 19 In Claim One, plaintiff alleges that he was working in the prison laundry and noticed 20 suspicious objects inside a mop-head coming down a conveyor belt. He took no action. Officer 21 Fox then seized plaintiff, put him in metal restraints, and placed him in a 2x2x7-foot cage. 22 Plaintiff was briefly taken to Fox’s office and interrogated. When plaintiff refused to “snitch,” 23 Fox returned him to the cage. Plaintiff remained in the cage for almost 6 hours, without lunch or 24 access to a bathroom. ECF No. 31 at 5-6. Plaintiff asserts that he was placed in the cage in 25 retaliation for his refusal to snitch, and that his placement in the cage violated the Eighth 26 Amendment. He also alleges that Fox submitted false evidence in the form of a rules violation 27 report, which resulted in his administrative segregation, guilt finding and attendant credit loss, 28 and wrongful referral for prosecution. Id. at 4. 1 2. Retaliation 2 To state a claim for retaliation in violation of the First Amendment, an incarcerated 3 plaintiff must allege facts establishing the following five elements: (1) adverse action against the 4 inmate by a state actor (2) because of (3) that prisoner’s protected conduct, and that such action 5 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 6 reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 7 (9th Cir. 2005). The Ninth Circuit has held in analogous contexts that there is no constitutionally 8 protected right not to “snitch.” Paguio v. Acosta, 114 F.3d 928, 930 (9th Cir. 1997) (rejecting 9 vindictive prosecution claim because refusal to snitch not protected conduct); United States v. 10 Gardner, 611 F.2d 770, 773 (9th Cir. 1980) (same). Accordingly, numerous district courts have 11 found that refusal to snitch cannot constitute protected conduct for purposes of an inmate’s First 12 Amendment retaliation claim. See Milliken v. Sturdevant, No. 18-CV-05326-LHK, 2020 U.S. 13 Dist. LEXIS 86062 at *24-26, 2020 WL 2512381 at *9 (N.D. Cal. May 15, 2020), appeal 14 dismissed, No. 20-16192, 2020 U.S. App. LEXIS 39715, 2020 WL 7383656 (9th Cir. Dec. 1, 15 2020).1 Because there is no Ninth Circuit authority for the proposition that refusing to inform is 16 conduct protected by the First Amendment, the undersigned agrees that adverse action in 17 response to such refusal cannot support a retaliation claim. Plaintiff therefore fails to state a 18 claim as a matter of law. 19 2. Conditions of Temporary Confinement in Cage 20 Conditions of confinement violate the Eighth Amendment only when two requirements 21 are met. “First, the deprivation alleged must be, objectively, sufficiently serious… a prison

22 1 See also, e.g., Johnson v. Suleyman, 2022 U.S. Dist. LEXIS 218777 at *16-17 (C.D. Cal. Oct. 23 25, 2022) (no retaliation claim where plaintiff alleged refusal to snitch was protected conduct); Garland v. Redding, 2016 U.S. Dist. LEXIS 40591, 2016 WL 1222202, at *4 (C.D. Cal. Mar. 28, 24 2016) (finding plaintiff failed to show how his refusal to debrief is protected conduct); Simpson v. Feltsen, 2010 U.S. Dist. LEXIS 46323, 2010 WL 1444487, at *3 (E.D. Cal. Apr. 9, 2010) 25 (failure to disclose source of drugs was “not protected conduct under the First Amendment”); 26 Dixon v. Gonzales, 2009 U.S. Dist. LEXIS 102893, 2009 WL 3416005, at *3 n.1 (E.D. Cal. Oct. 21, 2009) (finding plaintiff failed to state a claim for retaliation based upon a right not to speak 27 (or not to “snitch”) because “[c]hoosing not to disclose information about possible safety and security concerns is not protected conduct”), findings and recommendations adopted by 2009 28 U.S. Dist. LEXIS 118429, 2009 WL 5125612 (E.D. Cal. Dec. 21, 2009). 1 official’s act or omission must result in the denial of the minimal civilized measure of life's 2 necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and 3 citations omitted). Second, the prison official must subjectively “have a sufficiently culpable 4 state of mind . . . one of deliberate indifference to inmate health or safety.” Id. (internal quotation 5 marks and citations omitted). “What is necessary to show sufficient harm for purposes of the 6 Cruel and Unusual Punishment Clause depends upon the claim at issue.” Hudson v. McMillian, 7 503 U.S. 1, 8 (1992). “[E]xtreme deprivations are required to make out a[n] [Eighth Amendment] 8 conditions-of-confinement claim.” Id. at 9. 9 One missed lunch, 6 hours without a bathroom, and temporary confinement in a very 10 small space do not rise to the level of an Eighth Amendment violation either singly or in 11 combination. See Anderson v. County of Kern, 45 F.3d 1310, 1313-15 (9th Cir. 1995) (overnight 12 confinement in unsanitary conditions, shackled to waste-encrusted toilet grate, did not state claim 13 under Eighth Amendment because temporary); LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 14 1993) (temporary denial of regular meals “falls short of the deprivation necessary to form the 15 basis of an Eighth Amendment violation”); Owens v. Padilla, No. C-06-4778, 2008 WL 3916068, 16 at *4 (N.D. Cal. Aug. 22, 2008) (six-hour confinement in prison barbershop without access to 17 bathroom did not state Eighth Amendment claim). The conditions alleged here were undoubtedly 18 unpleasant, and the court does not suggest they were appropriate. However, especially in the 19 context of an immediate response to a potential prison security issue, such temporary deprivations 20 are not unconstitutional. See Sandin v. Conner, 515 U.S. 472, 482 (1995) (“federal courts ought 21 to afford appropriate deference and flexibility to state officials trying to manage a volatile 22 environment”). Because plaintiff’s allegations establish neither a sufficiently grave deprivation 23 nor deliberate indifference to plaintiff’s health or safety on defendant Fox’s part, the claim fails. 24 3. False Rules Violation Report 25 Plaintiff cannot base a claim for relief under Section 1983 on the allegation that Fox filed 26 a false report or falsified evidence. Although wrong, such conduct is not unconstitutional and 27 therefore cannot support a cognizable claim. See Hines v. Gomez, 108 F.3d 265, 268 (9th Cir. 28 1997) (“[T]here are no procedural safeguards protecting a prisoner from false retaliatory 1 accusations.”); accord, Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Freeman v. 2 Rideout, 808 F.2d 949, 951 (2nd Cir. 1986). 3 B. Claim Two: Defendant Nixon 4 1. Allegations 5 Plaintiff alleges that after he was detained by Officer Fox in relation to the contraband 6 investigation, Officer Nixon conducted a strip search in violation of plaintiff’s Fourth 7 Amendment rights and then placed him in the Security Housing Unit (“SHU”) in violation of his 8 Eighth Amendment rights. Plaintiff did not consent to the search, which included visual body 9 cavity inspection. He also did not consent to SHU confinement. ECF No. 31 at 6-8. 10 2. The Strip Search 11 Neither strip searches nor routine visual body cavity searches violate the Fourth 12 Amendment rights of prisoners. Bell v. Wolfish, 441 U.S. 520, 558 (1979); Thompson v. Souza, 13 111 F.3d 694, 700 (9th Cir. 1977); Michenfelder v. Sumner, 860 F.2d 328, 332-33 (9th Cir. 14 1988). 15 Strip searches that are “excessive, vindictive, harassing, or unrelated to any legitimate penological 16 interest,” however, may be unconstitutional. Michenfelder, 860 F.2d at 332. Lack of consent 17 does not render a strip search excessive, vindictive, harassing or devoid of penological purpose. 18 The circumstances alleged in the complaint—investigation of contraband discovered in plaintiff’s 19 workplace—preclude any plausible allegation that the search was unrelated to a legitimate 20 penological interest. To the contrary, prison officials have a duty to maintain safety and internal 21 order, and they are given broad discretion to do so. Bell, 441 U.S. at 547; Lucero v. Russell, 741 22 F.2d 1129 (9th Cir. 1984). Nothing in plaintiff’s allegations supports an inference that the search 23 exceeded the bounds of constitutionally permissible strip searches and body cavity inspections. 24 3. The SHU Placement 25 Plaintiff’s subsequent SHU placement was also related to the contraband incident and 26 therefore had a clear penological purpose. Claim Two fails to identify any act of Officer Nixon 27 that violated plaintiff’s rights. Assuming that plaintiff intends to base this claim for relief on a 28 theory that he was denied due process, the Constitution does not require a hearing or other review 1 of the evidence supporting segregation prior to a prisoner’s placement in administrative or other 2 segregation pending investigation. Hewitt v. Helms, 459 U.S. 460, 476 (1983), abrogated in part 3 on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). Moreover, SHU placement itself 4 does not violate the Eighth Amendment because its conditions are among those contemplated by 5 the inmate’s sentence served. See Resnick v. Hayes, 213 F.3d 443 (9th Cir. 2000) (disciplinary 6 segregation); May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997 (administrative segregation). 7 Accordingly, plaintiff fails to state any claim against Officer Nixon. 8 C. Claim Three: Defendant Lee 9 1. Allegations 10 Lt. Lee was the Senior Hearing Officer who conducted the disciplinary hearing that 11 followed the contraband incident. The SAC alleges that Lee acted “arbitrarily and capriciously” 12 by denying plaintiff’s request to have a witness at the hearing and by imposing a 180-day SHU 13 term “based upon evidence he knew or should have known was false.” ECF No. 31 at 8. Plaintiff 14 contends that the denial of the witness, the finding that he had participated in the introduction of 15 contraband, and the SHU term violated his due process and Eighth Amendment rights. Id. at 8- 16 10. 17 2. Denial of Witness 18 Inmates have a constitutionally protected right not to be punished for misconduct without 19 due process, though the process due in prison disciplinary proceedings is limited. In Wolff v. 20 McDonnell, the Supreme Court established the following requirements: (1) advance, written 21 notice of the violation; (2) at least 24 hours to prepare for a committee appearance; (3) a written 22 statement of fact-finding; (4) the right to present witnesses and evidence where it would not be 23 unduly hazardous to institutional safety; (5) an impartial decision-maker; and (6) assistance if 24 inmate is illiterate or if issues are complex. 418 U.S. 539, 564-70 (1974). Prison officials 25 maintain the necessary discretion to keep a hearing within reasonable limits and to refuse to call 26 witnesses that may create a risk of reprisal or undermine authority. Id. at 566. 27 Plaintiff states that the reason defendant Lee denied his request to have a particular 28 witness at his hearing was because “witnesses [were] not allowed in the SHU.” ECF No. 31 at 9. 1 A witness exclusion decision based on security concerns cannot support a due process claim 2 under Wolff. Plaintiff’s conclusory allegation that the decision was “arbitrary and capricious” 3 cannot overcome this problem. Neither can the allegation that state law was violated, ECF No. 31 4 at 9, because California statutes do not define the contours of federal constitutional rights. 5 At the hearing, plaintiff was able to view and respond to a video recording of the laundry 6 room contraband incident, and was permitted to present a favorable written statement from 7 another inmate. Id. at 9-10. The attachments to the complaint, id. at 25-50, reflect that the 8 minimal due process requirements of Wolff were satisfied. Accordingly, the SAC fails to state a 9 claim based on the conduct of the hearing. 10 3. Guilt Finding 11 To the extent that plaintiff challenges the finding that he committed the charged 12 misconduct, his claim fails as a matter of law because the Constitution requires only that the 13 disciplinary finding be based on “some evidence.” See Superintendent v. Hill, 472 U.S. 445, 454 14 (1985). The record reflects the hearing officer’s reliance on Officer Fox’s report, which in turn 15 relied on confidential information. This indisputably constitutes “some evidence,” though 16 plaintiff has disputed the accuracy of that evidence since the incident. Because the falsification of 17 evidence does not support a constitutional violation, as explained above, plaintiff’s theory as to 18 the invalidity of the guilt finding necessarily fails. 19 4. SHU Term Imposed 20 Plaintiff cannot state a constitutional claim based on his placement in segregation because 21 due process is only implicated by restraint which imposes atypical and significant hardship on a 22 prisoner in relation to the ordinary incidents of prison life. See Sandin, 515 U.S. at 483-84. 23 Disciplinary segregation does not meet this standard. Resnick v. Hayes, 213 F.3d 443 (9th Cir. 24 2000). 25 D. Claim Four: Defendant Arnold 26 1. Allegations 27 Claim Four alleges that Warden Arnold violated plaintiff’s rights in four ways: (1) having 28 plaintiff summarily placed in the SHU based on false evidence; (2) targeting plaintiff and other 1 Black laundry workers for discriminatory treatment in relation to the contraband incident, in 2 violation of equal protection; (3) false arrest; and (4) malicious prosecution. ECF No. 31 at 10- 3 11. In support of these claims, plaintiff provides details of the criminal case that was brought 4 against him in Solano County Superior Court arising from the prison contraband incident. Id. at 5 11-16. The SAC alleges that plaintiff spent more than a year being shuttled between the CSP- 6 Solano SHU and the Solano County Jail. The charges against him were eventually dismissed 7 after Officer Fox was impeached at a pretrial hearing with the incident videotape, which showed 8 plaintiff standing at his work position and taking no action to cover up the contraband, contrary to 9 Fox’s testimony. Id. at 14. Plaintiff alleges in conclusory terms that Warden Arnold had known 10 all along that Fox’s report was false. Id. at 15. 11 2. SHU Placement 12 For the reasons already explained, neither plaintiff’s pre-hearing SHU placement nor the 13 imposition of a SHU term following the rules violation hearing can support a viable constitutional 14 claim. The same analysis applies to plaintiff’s time in SHU during the course of his Solano 15 County prosecution. Moreover, as to Warden Arnold, neither the factual allegations of the 16 complaint nor the attachments indicate that Arnold personally caused the SHU placement.2 17 Without personal involvement, there can be no liability under Section 1983. See Starr v. Baca, 18 652 F.3d 1202, 1207 (9th Cir. 2011); Taylor v List, 880 F.2d 1040, 1045 (9th Cir. 1989). 19 3. Racial Discrimination 20 The Equal Protection Clause broadly requires the government to treat similarly situated 21 people equally. Hartman v. California Dep’t of Corr. and Rehabilitation, 707 F.3d 1114, 1123 22 (9th Cir. 2013). To state an equal protection claim, a plaintiff must allege that defendant acted 23 with an intent or purpose to discriminate against him based upon plaintiff’s membership in a 24 protected class such as a particular racial group. Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th 25 Cir. 2013). Plaintiff must plead specific facts that demonstrate unlawful discrimination or support 26

27 2 The attachments to the SAC reflect that Warden Arnold denied plaintiff’s inmate appeal of the matter at the Second Level. ECF No. 31 at 45. This performance of a review function does not 28 establish liability for the underlying action. 1 an inference of discriminatory intent. Byrd v. Maricopa Cnty. Sheriff’s Dep’t, 565 F.3d 1205, 2 1212 (9th Cir. 2009). 3 Plaintiff’s allegations of racial discrimination are entirely conclusory. To the extent that 4 there was a racial disparity among those prisoners charged internally with disciplinary infractions 5 and referred externally for prosecution, the complaint is devoid of allegations that would support 6 an inference of intentional racial discrimination. The complaint is also devoid of allegations that 7 would establish Warden Arnold’s involvement in the decisions regarding which inmates should 8 face disciplinary charges and which should be referred for prosecution. There is no basis for an 9 inference that Warden Arnold’s involvement, if any, was influenced by racial considerations. 10 4. False Arrest and Malicious Prosecution 11 Plaintiff seeks to hold Warden Arnold responsible for his arrest and prosecution on 12 criminal charges, but nothing in the complaint establishes Arnold’s involvement in those 13 decisions. Any such allegations would not be plausible, because prison officials lack the 14 authority to initiate criminal prosecutions. Even if Arnold had personally authorized the referral 15 of plaintiff’s case to local law enforcement for consideration of prosecution, that would not 16 support liability for the decisions subsequently made by Solano County officials to arrest, charge, 17 and prosecute. Being a link in the chain of events does not support the causation that Section 18 1983 requires. See Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999) (officers who 19 conducted illegal search cannot be liable under § 1983 for the ensuing wrongful conviction and 20 incarceration, because intervening acts of the prosecutor and judge defeat proximate causation).3 21 E. Claim Five: Solano County Sheriff’s Department 22 1. Allegations 23 The SAC alleges in Claim Five that the Solano County Sheriff’s Department is liable for 24 plaintiff’s false arrest/false imprisonment during the course of the criminal case against him, and 25

26 3 A malicious prosecution claim against a proper Solano County defendant would also fail. Such a claim requires facts showing that defendant(s) prosecuted plaintiff with malice, without 27 probable cause, and for the purpose of denying him equal protection or another specific constitutional right. Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). No such 28 allegations are present, or plausible, in this case. 1 for malicious prosecution. ECF No. 31 at 16-17. The factual basis of the claim is substantially 2 identical to that of Claim Four. See id. at 17-20. 3 2. Municipal Liability 4 A suit against the Solano County Sheriff’s Department is properly construed as a suit 5 against Solano County. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citing Monell v. 6 New York City Dept. of Social Services, 436 U.S. 658, 690, n.55 (1978)). Local governmental 7 entities may be liable under Section 1983 for civil rights violations. See e.g. Karim-Panahi v. Los 8 Angeles Police Dept., 839 F.2d 621, 624 n.2. However, the Supreme Court has limited municipal 9 liability to the unconstitutional implementation or execution of a municipal “policy statement, 10 ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” 11 Monell, 436 U.S. at 690. The SAC does not allege that plaintiff’s arrest, detention or prosecution 12 reflected a specific county policy or procedure, or the violation of a policy or procedure. 13 Accordingly, there is no basis for liability on the part of the County or its Sheriff’s Department.4 14 F. Further Leave to Amend is Not Warranted 15 Leave to amend should be granted if it appears possible that the defects in the complaint 16 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31 17 (9th Cir. 2000) (en banc). If after careful consideration, however, it is clear that a complaint 18 cannot be cured by amendment, the court may dismiss without leave to amend. Cato v. United 19 States, 70 F.3d 1103, 1105-06 (9th Cir. 1995). Leave to amend may be denied where amendment 20 is futile or there has been a repeated failure to cure deficiencies. Foman v. Davis, 371 U.S. 178, 21 182 (1962). Here, plaintiff has already amended twice and the factual basis for his putative 22 claims is clear. It is equally clear that the events described in the Second Amended Complaint do 23 not establish a constitutional violation. Further leave to amend therefore should be denied as 24 futile. 25 //// 26 //// 27 4 In any event, the prison disciplinary findings established probable cause even if plaintiff was in 28 fact innocent, defeating any claim of false arrest or imprisonment and of malicious prosecution. 1 IV. PLAIN ENGLISH SUMMARY FOR PRO SE PLAINTIFF 2 The magistrate judge 1s recommending that your case be dismissed. Even if you were 3 || innocent of the contraband charges, the wrongs you describe in the complaint did not violate your 4 || constitutional rights. You will have an opportunity to object to this recommendation in writing 5 || before the district judge makes then final decision. 6 CONCLUSION 7 For the reasons set forth above, IT IS HEREBY RECOMMENDED that the complaint be 8 | DISMISSED with prejudice for failure to state a claim upon which relief may be granted. See 28 9 | US.C. § 1915A(b)(1). 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 12 | after being served with these findings and recommendations, plaintiff may file written objections 13 || with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 14 | and Recommendations.” Plaintiff is advised that failure to file objections within the specified 15 || time waives the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th 16 | Cir. 1991). 17 | DATED: May 3, 2023 . ~ 18 Bettie Clare 19 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 12