1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DESMOND PRYER, Case No. 1:23-cv-00167-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 ALLISON, et al., FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND 15 Defendants. DEFENDANTS 16 ECF No. 14 17 FOURTEEN (14) DAY DEAD-LINE 18 Plaintiff Desmond Pryer (“Plaintiff”) is a state prisoner appearing pro se in this civil rights 19 action pursuant to 42 U.S.C. § 1983. On February 3, 2023, this action was removed from the 20 Superior Court of California, County of Kings. (ECF No. 1.) On February 7, 2023, Defendants 21 filed a request for screening of the complaint pursuant to the Prison Litigation Reform Act, 28 22 U.S.C. § 1915A and that request was granted. (ECF No. 4, 5.) The Court screened Plaintiff’s 23 complaint, and Plaintiff was granted leave to amend. Plaintiff’s first amended complaint, filed on 24 April 10, 2023, is before the Court for screening. (ECF No. 14.) 25 I. Screening Requirement and Standard 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 28 1 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 2 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 3 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 4 A complaint must contain “a short and plain statement of the claim showing that the 5 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 6 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 8 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 9 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 10 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 11 To survive screening, Plaintiff’s claims must be facially plausible, which requires 12 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 13 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 14 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 15 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 16 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 17 II. Plaintiff’s Allegations 18 Plaintiff is currently housed at California Substance Abuse and Treatment Facility 19 (“SATF”) in Corcoran, California, where the events in the complaint are alleged to have occurred. 20 Plaintiff names as defendants: (1) E. Bott, floor correctional officer on Facility E, and (2) John 21 Doe #1, floor correctional officer on Facility E. 22 Plaintiff alleges an Eighth Amendment violation for deliberate difference to health and 23 safety. As a result of deliberate indifference, Plaintiff has suffered Covid-19 and is suffering the 24 after effects of Covid-19. In the summer of 2020, Defendant Bott and John Doe knew that inmate 25 Mario Bardo was Covid-19 positive after Bott was personally informed that inmate Bardo was 26 positive. Inmate Bardo remained in Plaintiff’s cell for ten days before being moved to quarantine. 27 Defendants failure to take effective countermeasure against the outbreak caused Plaintiff to 28 become positive with Covid-19. Defendant Bott told Plaintiff that Plaintiff would have to have 1 cellmate Bardo or risk being written up for refusing housing. 2 Correctional officers on Facility E would not and failed to wear their facemasks. They 3 knew this put Plaintiff at a substantial risk of getting Covid-19. Defendants turned Facility E, 4 which was noninfected, into a quarantine, which resulted in infected inmates in the facility. 5 Defendants are responsible for the failure of prison personnel to take adequate precautions 6 to curb the spread of Covid-19. Defendants transferred inmates around the facility increasing the 7 risks to inmates due to close proximity of inmates and guards. They allowed porters who tested 8 positive to work with non-infected porters. Inmates stood within six feet of one another and 9 social distancing was impossible during sick call and appointments, and defendants refused to 10 enforce six feet social distancing. Defendants know that many officers have refused to be 11 vaccinated, leaving vast number of inmates unable to protect themselves from Covid-19. 12 Defendants were deliberately indifferent to Plaintiff’s health and safety by failing to 13 enforce the policy of not housing inmates without Covid-19 with inmates that tested positive for 14 Covid-19 and by failing to enforce the policy that staff wear masks. 15 Defendants failed to provide disinfectant for common areas and failed to follow clear 16 guidance from the Center for Disease Control. Defendants knew Covid-19 posed a serious risk to 17 Plaintiff. None of the conditions served any legitimate penological purpose and repeatedly and 18 intentionally exposed Plaintiff to Covid-19 in deliberate indifference to Plaintiff’s health and 19 safety. They failed to follow their own policies and procedures in preventing Covid-19. As a 20 result, Plaintiff became infected with Covid-19. 21 As remedies, Plaintiff seeks declaratory relief and damages. 22 III. Discussion 23 A. Federal Rule of Civil Procedure 8 24 Pursuant to Rule 8, a complaint must contain “a short and plain statement of the claim 25 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed factual allegations 26 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 27 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must 28 set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on 1 its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual allegations 2 are accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556–57; Moss, 3 572 F.3d at 969. 4 Here, Plaintiff's complaint is short, but it is not a plain statement of his claims showing 5 that he is entitled to relief. Plaintiff's allegations are conclusory and do not state what happened, 6 when it happened, or which defendant was involved. Many of Plaintiff's allegations are purely 7 conclusory or speculative.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DESMOND PRYER, Case No. 1:23-cv-00167-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 ALLISON, et al., FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND 15 Defendants. DEFENDANTS 16 ECF No. 14 17 FOURTEEN (14) DAY DEAD-LINE 18 Plaintiff Desmond Pryer (“Plaintiff”) is a state prisoner appearing pro se in this civil rights 19 action pursuant to 42 U.S.C. § 1983. On February 3, 2023, this action was removed from the 20 Superior Court of California, County of Kings. (ECF No. 1.) On February 7, 2023, Defendants 21 filed a request for screening of the complaint pursuant to the Prison Litigation Reform Act, 28 22 U.S.C. § 1915A and that request was granted. (ECF No. 4, 5.) The Court screened Plaintiff’s 23 complaint, and Plaintiff was granted leave to amend. Plaintiff’s first amended complaint, filed on 24 April 10, 2023, is before the Court for screening. (ECF No. 14.) 25 I. Screening Requirement and Standard 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 28 1 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 2 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 3 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 4 A complaint must contain “a short and plain statement of the claim showing that the 5 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 6 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 8 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 9 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 10 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 11 To survive screening, Plaintiff’s claims must be facially plausible, which requires 12 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 13 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 14 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 15 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 16 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 17 II. Plaintiff’s Allegations 18 Plaintiff is currently housed at California Substance Abuse and Treatment Facility 19 (“SATF”) in Corcoran, California, where the events in the complaint are alleged to have occurred. 20 Plaintiff names as defendants: (1) E. Bott, floor correctional officer on Facility E, and (2) John 21 Doe #1, floor correctional officer on Facility E. 22 Plaintiff alleges an Eighth Amendment violation for deliberate difference to health and 23 safety. As a result of deliberate indifference, Plaintiff has suffered Covid-19 and is suffering the 24 after effects of Covid-19. In the summer of 2020, Defendant Bott and John Doe knew that inmate 25 Mario Bardo was Covid-19 positive after Bott was personally informed that inmate Bardo was 26 positive. Inmate Bardo remained in Plaintiff’s cell for ten days before being moved to quarantine. 27 Defendants failure to take effective countermeasure against the outbreak caused Plaintiff to 28 become positive with Covid-19. Defendant Bott told Plaintiff that Plaintiff would have to have 1 cellmate Bardo or risk being written up for refusing housing. 2 Correctional officers on Facility E would not and failed to wear their facemasks. They 3 knew this put Plaintiff at a substantial risk of getting Covid-19. Defendants turned Facility E, 4 which was noninfected, into a quarantine, which resulted in infected inmates in the facility. 5 Defendants are responsible for the failure of prison personnel to take adequate precautions 6 to curb the spread of Covid-19. Defendants transferred inmates around the facility increasing the 7 risks to inmates due to close proximity of inmates and guards. They allowed porters who tested 8 positive to work with non-infected porters. Inmates stood within six feet of one another and 9 social distancing was impossible during sick call and appointments, and defendants refused to 10 enforce six feet social distancing. Defendants know that many officers have refused to be 11 vaccinated, leaving vast number of inmates unable to protect themselves from Covid-19. 12 Defendants were deliberately indifferent to Plaintiff’s health and safety by failing to 13 enforce the policy of not housing inmates without Covid-19 with inmates that tested positive for 14 Covid-19 and by failing to enforce the policy that staff wear masks. 15 Defendants failed to provide disinfectant for common areas and failed to follow clear 16 guidance from the Center for Disease Control. Defendants knew Covid-19 posed a serious risk to 17 Plaintiff. None of the conditions served any legitimate penological purpose and repeatedly and 18 intentionally exposed Plaintiff to Covid-19 in deliberate indifference to Plaintiff’s health and 19 safety. They failed to follow their own policies and procedures in preventing Covid-19. As a 20 result, Plaintiff became infected with Covid-19. 21 As remedies, Plaintiff seeks declaratory relief and damages. 22 III. Discussion 23 A. Federal Rule of Civil Procedure 8 24 Pursuant to Rule 8, a complaint must contain “a short and plain statement of the claim 25 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed factual allegations 26 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 27 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must 28 set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on 1 its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual allegations 2 are accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556–57; Moss, 3 572 F.3d at 969. 4 Here, Plaintiff's complaint is short, but it is not a plain statement of his claims showing 5 that he is entitled to relief. Plaintiff's allegations are conclusory and do not state what happened, 6 when it happened, or which defendant was involved. Many of Plaintiff's allegations are purely 7 conclusory or speculative. General assertions regarding the failure of “defendants” to comply 8 with certain prison guidelines are not sufficient, and Plaintiff may not merely state the elements 9 of each cause of action without providing factual allegations in support of his claims. Further, the 10 Court is not required to accept legal conclusions, supported only by conclusory statements, as 11 true. Plaintiff has been unable to cure this deficiency. 12 B. Deliberate Indifference to Conditions of Confinement/Failure to Protect 13 Plaintiff alleges an Eighth Amendment violation regarding conditions of 14 confinement/failure to protect. He challenges his contraction of COVID-19 when he was placed 15 in a cell with a COVID-19 positive cellmate. 16 Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. 17 See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 1041, 1045 18 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. Gardner, 986 F.2d 19 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, provide prisoners with 20 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 21 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 22 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); Hoptowit v. 23 Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 642 F.2d 1129, 1132–33 (9th Cir. 24 1981). 25 Two requirements must be met to show an Eighth Amendment violation. Farmer v. 26 Brennan, 511 U.S. 825, 834 (1994). “First, the deprivation must be, objectively, sufficiently 27 serious.” Id. (internal quotation marks and citation omitted). Second, “prison officials must have 28 a sufficiently culpable state of mind,” which for conditions of confinement claims, “is one of 1 deliberate indifference.” Id. (internal quotation marks and citation omitted). Prison officials act 2 with deliberate indifference when they know of and disregard an excessive risk to inmate health 3 or safety. Id. at 837. The circumstances, nature, and duration of the deprivations are critical in 4 determining whether the conditions complained of are grave enough to form the basis of a viable 5 Eighth Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). Mere 6 negligence on the part of a prison official is not sufficient to establish liability, but rather, the 7 official’s conduct must have been wanton. Farmer, 511 U.S. at 835; Frost v. Agnos, 152 F.3d 8 1124, 1128 (9th Cir. 1998). 9 Extreme deprivations are required to make out a conditions of confinement claim, and 10 only those deprivations denying the minimal civilized measure of life’s necessities are 11 sufficiently grave to form the basis of an Eighth Amendment violation. Farmer, 511 U.S. at 834; 12 Hudson v. McMillian, 503 U.S. 1, 9 (1992). The circumstances, nature, and duration of the 13 deprivations are critical in determining whether the conditions complained of are grave enough to 14 form the basis of a viable Eighth Amendment claim. Johnson, 217 F.3d at 731. Second, the 15 prison official must “know[ ] of and disregard[ ] an excessive risk to inmate health or safety. . . .” 16 Farmer, 511 U.S. at 837. Thus, a prison official may be held liable under the Eighth Amendment 17 for denying humane conditions of confinement only if he knows that inmates face a substantial 18 risk of harm and disregards that risk by failing to take reasonable measures to abate it. Id. at 837– 19 45. 20 At the time of the allegations in the complaint, COVID-19 posed a substantial risk of 21 serious harm. See Plata v. Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. Apr. 17, 2020) (“[N]o 22 one questions that [COVID-19] poses a substantial risk of serious harm” to prisoners.). However, 23 in order to state a cognizable Eighth Amendment claim, Plaintiff must provide more than 24 generalized allegations that the “medical staff” and “correctional officers” or “defendants” have 25 not done enough regarding overcrowding or prison movement or housing assignment to control 26 the spread. See Booth v. Newsom, No. 2:20-cv-1562 AC P, 2020 WL 6741730, at *3 (E.D. Cal. 27 Nov. 17, 2020); see Blackwell v. Covello, No. 2:20-CV-1755 DB P, 2021 WL 915670, at *3 (E.D. 28 Cal. Mar. 10, 2021) (failure to state a claim against warden for failure to adequately control the 1 spread of COVID-19 in the prison); Benitez v. Sierra Conservation Ctr., Warden, No. 1:21-CV- 2 00370 BAM (PC), 2021 WL 4077960, at *5 (E.D. Cal. Sept. 8, 2021), report and 3 recommendation adopted, No. 1:21-CV-00370 NONE BAM (PC), 2021 WL 4593841 (E.D. Cal. 4 Oct. 6, 2021) (Failed to state a claim on allegations that overcrowding/lack of distance between 5 inmates has exacerbated the conditions leading to transmission of COVID. Plaintiff alleges that 6 there is no way to socially distance, among other conditions.); Sanford v. Eaton, No. 1:20-cv- 7 00792-JLT-BAM (PC), 2022 WL 1308193, at *8 (E.D. Cal. May 2, 2022), report and 8 recommendation adopted in full, No. 1:20-cv-00792-JLT-BAM (PC), 2022 WL 2181782 (E.D. 9 Cal. June 16, 2022) (in order to state a cognizable Eighth Amendment claim against the warden, 10 associate wardens and any other defendants named, Plaintiff must provide more than generalized 11 allegations that the warden, associate wardens and other defendants have not done enough 12 regarding overcrowding to control the spread). 13 At the time of the allegations in the complaint, the transmissibility of the COVID-19 virus 14 in conjunction with Plaintiff’s living conditions, in which he alleges he was placed in a cell with a 15 COVID-19 positive cellmate, are sufficient to satisfy the objective prong, i.e., that Plaintiff was 16 “incarcerated under conditions posing a substantial risk of serious harm.” The pertinent question 17 in determining whether Plaintiff states a claim is whether either Defendant demonstrated 18 deliberate indifference to that risk of harm. The key inquiry is not whether Defendant perfectly 19 responded, complied with every CDC guideline, or whether their efforts ultimately averted the 20 risk; instead, the key inquiry is whether he “responded reasonably to the risk.” See Stevens v. 21 Carr, No. 20-C-1735, 2021 WL 39542, at *4 (E.D. Wis. Jan. 5, 2021); accord Benitez, v. Sierra 22 Conservation Center, 1:21-CV-00370 BAM (PC), 2021 WL 4077960, at *5 (E.D. Cal. Sept. 8, 23 2021) (same); Sanford v. Eaton, No. 1:20-CV-00792 BAM (PC), 2021 WL 3021447, at *8 (E.D. 24 Cal. July 16, 2021) (same). 25 Plaintiff alleges that Defendants Bott and John Doe knew Inmate Bardo was Covid-19 26 positive because they were personally informed. Liberally construing the allegations, Defendant 27 Bott left Inmate Bardo in Plaintiff’s cell knowing that Inmate Bardo was Covid-19 positive and 28 Plaintiff got infected with Covid-19. Plaintiff states a cognizable claim against Defendant Bott. 1 Plaintiff fails to state a cognizable claim against Defendant John Doe. While Plaintiff alleges 2 Defendant John Doe knew that Inmate Bardo was Covid-19 positive, Plaintiff does not allege that 3 Defendant John Doe did or did not do anything further regarding the risk of exposure to Covid- 4 19. Plaintiff does not allege that Defendant John Doe kept Plaintiff in the cell with Inmate Bardo. 5 At the pleading stage, the Court finds that Plaintiff states a cognizable claim against Defendant 6 Bott for deliberate indifference to conditions of confinement. See Brummett v. Allison, No. 1:22- 7 CV-00407 ADA BAM PC, 2022 WL 17904397, at *10 (E.D. Cal. Dec. 23, 2022) (stating a 8 cognizable claim for housing a Covid-19 positive inmate in the same cell as Plaintiff), report and 9 recommendation adopted, No. 1:22-CV-0407 ADA BAM PC, 2023 WL 2024857 (E.D. Cal. Feb. 10 15, 2023). 11 Plaintiff fails to state any other claim related to conditions of confinement regarding 12 Covid-19. Plaintiff’s conclusory allegations of the “defendants’” various failures related to 13 Covid-19 do not identify what each defendant did or did not do or whether they had the authority 14 to take the actions complained of in the complaint. Indeed, the complaint appears to be a 15 “canned” complaint without specifics as to each defendant’s conduct. 16 C. Title 15 and Policy Violation 17 To the extent that any Defendant has not complied with applicable state statutes or prison 18 regulations for failure to follow procedures, these deprivations do not support a claim under 19 §1983. Section 1983 only provides a cause of action for the deprivation of federally protected 20 rights. See e.g., Nible v. Fink, 828 Fed. Appx. 463 (9th Cir. 2020) (violations of Title 15 of the 21 California Code of Regulations do not create private right of action); Nurre v. Whitehead, 580 22 F.3d 1087, 1092 (9th Cir. 2009) (section 1983 claims must be premised on violation of federal 23 constitutional right); Prock v. Warden, No. 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at *11– 24 12 (E.D. Cal. Oct. 8, 2013) (noting that several district courts have found no implied private right 25 of action under title 15 and stating that “no § 1983 claim arises for [violations of title 15] even if 26 they occurred.”); Parra v. Hernandez, No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. 27 Cal. Nov. 13, 2009) (granting motion to dismiss prisoner's claims brought pursuant to Title 15 of 28 the California Code of Regulations); Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW 1 (PC), 2009 WL 1211372, at *9 (E.D. Cal. May 1, 2009) (holding that there is no private right of 2 action under Title 15 of the California Code of Regulations); Tirado v. Santiago, No. 1:22-CV- 3 00724 BAM PC, 2022 WL 4586294, at *5 (E.D. Cal. Sept. 29, 2022), report and recommendation 4 adopted, No. 1:22-CV-00724 JLT BAM PC, 2022 WL 16748838 (E.D. Cal. Nov. 7, 2022) 5 (same). 6 To the extent Plaintiff is complaining about housing or housing assignments, he has no 7 such federally protected right. In general, prison officials’ housing and classification decisions do 8 not give rise to federal constitutional claims encompassed by the protection of liberty and 9 property guaranteed by the Fifth and Fourteenth Amendments. Montayne v. Haymes, 427 U.S. 10 236, 242 (1976) (It is well settled that prisoners have no constitutional right to placement in any 11 particular prison, to any particular security classification, or to any particular housing 12 assignment.); accord King v. Lemos, No. 1:20-CV-01837-NONE-BAM (PC), 2021 WL 2038187, 13 at *6 (E.D. Cal. May 21, 2021); Sanford v. Eaton, No. 1:20-CV-00792 JLT BAM PC, 2022 WL 14 1308193, at *9 (E.D. Cal. May 2, 2022), report and recommendation adopted, No. 1:20-CV- 15 00792 JLT BAM PC, 2022 WL 2181782 (E.D. Cal. June 16, 2022) (no right to stop transfer). 16 D. Unknown Defendants 17 The use of John Does in pleading practice is generally disfavored – but is not prohibited. 18 See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); Wakefield v. Thompson, 177 F.3d 19 1160, 1163 (9th Cir. 1999); Lopes v. Viera, 543 F.Supp.2d 1149, 1152 (E.D. Cal. 2008). 20 However, Plaintiff is hereby advised that the court cannot order service of a Doe defendant 21 because the United States Marshal cannot serve a Doe defendant. Plaintiff will be required to 22 identify him or her with enough information to locate the defendant for service of process. 23 Plaintiff will be given the “ ‘opportunity through discovery to identify the unknown (Doe) 24 defendants.’ ” Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (quoting Gillespie, 629 25 F.2d at 642). 26 E. Declaratory Relief 27 To the extent Plaintiff's complaint seeks a declaratory judgment, it is unnecessary. “A 28 declaratory judgment, like other forms of equitable relief, should be granted only as a matter of 1 judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Vill., 2 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful 3 purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and 4 afford relief from the uncertainty and controversy faced by the parties.” United States v. 5 Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). If this action reaches trial and the jury returns a 6 verdict in favor of Plaintiff, then that verdict will be a finding that Plaintiff's constitutional rights 7 were violated. Accordingly, a declaration that any defendant violated Plaintiff's rights is 8 unnecessary. 9 IV. Conclusion and Recommendation 10 Based on the foregoing, the Court finds that Plaintiff’s first amended complaint states a 11 cognizable claim against Defendant E. Bott for deliberate indifference to conditions of 12 confinement in violation of the Eighth Amendment. 13 The Court further finds that Plaintiff’s first amended complaint fails to state any other 14 cognizable claims against any other defendants. Despite being provided the relevant pleading and 15 legal standards, Plaintiff has not been able to cure the deficiencies. Therefore, further leave to 16 amend is unwarranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 17 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 18 district judge to this action. 19 Furthermore, it is HEREBY ORDERED as follows: 20 1. This action proceed on Plaintiff’s first amended complaint, filed April 10, 2023, (ECF No. 21 14), against Defendants E. Bott for deliberate indifference to conditions of confinement in 22 violation of the Eighth Amendment; and 23 2. All other claims and defendants be dismissed based on Plaintiff’s failure to state claims 24 upon which relief may be granted. 25 * * * 26 These Findings and Recommendations will be submitted to the United States District 27 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 28 being served with these Findings and Recommendations, Plaintiff may file written objections 1 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 2 and Recommendations.” Plaintiff is advised that the failure to file objections within the specified 3 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 4 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 5 F.2d 1391, 1394 (9th Cir. 1991)). 6 IT IS SO ORDERED. 7
8 Dated: April 13, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9
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