(PC)Vera v. Warden

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 WILLIAM VERA, aka Memo Vera, 1:22-cv-00893-KES-CDB (PC)

10 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS THIS ACTION FOR 11 v. PLAINTIFF’S FAILURE TO STATE A CLAIM UPON WHICH RELIEF 12 WARDEN, et al., CAN BE GRANTED

13 Defendants. (Doc. 61) 14 14-DAY OBJECTION DEADLINE 15 Plaintiff William Vera, also known as Memo Vera, is a state prisoner proceeding pro se 16 and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. 17 I. INTRODUCTION 18 The Court issued its Order Regarding Plaintiff’s First Amended Complaint on November 19 21, 2023. (Doc. 51.) The Court found Plaintiff’s first amended complaint violated Rules 18 and 20 20 of the Federal Rules of Civil Procedure and the Court’s prior screening order. (Id. at 4-8.) 21 Plaintiff was granted “one final opportunity” to file an amended complaint curing the deficiencies 22 identified in that order and in the Court’s April 26, 2023, order. (Id. at 8-10.) 23 Following extensions of time, Plaintiff timely filed a second amended complaint on March 24 20, 2024. (Doc. 61.) 25 II. SCREENING REQUIREMENT 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 28 1 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 2 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 3 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 4 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 5 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 6 III. PLEADING REQUIREMENTS 7 A. Federal Rule of Civil Procedure 8(a) 8 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 9 exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain 10 “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. 11 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 12 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 13 quotation marks & citation omitted). 14 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 15 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 16 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 17 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 18 Id. (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as true, but legal 19 conclusions are not. Id. (citing Twombly, 550 U.S. at 555). 20 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 21 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 22 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal 23 theories. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation 24 of a civil rights complaint may not supply essential elements of the claim that were not initially 25 pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal 26 quotation marks & citation omitted), and courts “are not required to indulge unwarranted 27 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 28 marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 1 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 2 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted). 3 B. Linkage and Causation 4 Section 1983 provides a cause of action for the violation of constitutional or other federal 5 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 6 section 1983, a plaintiff must show a causal connection or link between the actions of the 7 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 8 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 9 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 10 act, participates in another’s affirmative acts, or omits to perform an act which he is legal required 11 to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 12 743 (9th Cir. 1978) (citation omitted). 13 C. Supervisory Liability 14 Liability may not be imposed on supervisory personnel for the actions or omissions of 15 their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77; see e.g., 16 Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010) (plaintiff required to 17 adduce evidence the named supervisory defendants “themselves acted or failed to act 18 unconstitutionally, not merely that subordinate did”), overruled on other grounds by Castro v. 19 C’nty of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016); Jones v. Williams, 297 F.3d 930, 934 20 (9th Cir. 2002) (“In order for a person acting under color of state law to be liable under section 21 1983 there must be a showing of personal participation in the alleged rights deprivation: there is 22 no respondeat superior liability under section 1983”). 23 Supervisors may be held liable only if they “participated in or directed the violations, or 24 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th 25 Cir. 1989). “The requisite causal connection may be established when an official sets in motion a 26 ‘series of acts by others which the actor knows or reasonably should know would cause others to 27 inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Accord 28 Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (supervisory liability may be based on 1 inaction in the training and supervision of subordinates). 2 Supervisory liability may also exist without any personal participation if the official 3 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 4 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 5 F.2d 1435, 1446 (9th Cir. 1991) (citations & quotations marks omitted), abrogated on other 6 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 7 To prove liability for an action or policy, the plaintiff “must ... demonstrate that his 8 deprivation resulted from an official policy or custom established by a ... policymaker possessed 9 with final authority to establish that policy.” Waggy v. Spokane County Washington, 594 F.3d 10 707, 713 (9th Cir.2010). When a defendant holds a supervisory position, the causal link between 11 such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 12 Stapley, 607 F.2d 858, 862 (9th Cir. 1979). Vague and conclusory allegations concerning the 13 involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey v. 14 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 15 IV. DISCUSSION 16 A. Plaintiff’s Second Amended Complaint 17 Plaintiff names as defendants Warden C. Pfeiffer,1 Correctional Sergeant Felham, 18 Correctional Officers D. Hernandez, R. Mailing and J. Otto, Correctional Counselors T. Yoder 19 and Gerry, Psychologist K. B. Bowman, and “J. Doe,” a member of the mental health staff, all 20 employed at Kern Valley State Prison (KVSP). (Doc. 61 at 1-3.) Plaintiff seeks compensatory and 21 punitive damages, a “declaration of rights violated under the U.S.C.,[2] preliminary and 22

23 1 Plaintiff spells the warden’s surname incorrectly, to wit: Pfiffer. (See Doc. 61 at 2.) The Court’s prior screening order also corrected the spelling of Warden Pfeiffer’s name. (See Doc. 51 at 5, n.1.) 24 2 To the extent Plaintiff's complaint seeks a declaratory judgment, it is unnecessary. “A declaratory judgment, like 25 other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful purpose in clarifying and settling the legal relations in issue nor terminate 26 the proceedings and afford relief from the uncertainty and controversy faced by the parties.” United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). If this action reaches trial and the jury returns a verdict in favor of 27 Plaintiff, then that verdict will be a finding that Plaintiff's constitutional rights were violated. Accordingly, a declaration that any defendant violated Plaintiff's rights is unnecessary. 28 1 permanent injunction for retaliations,”3 costs of suit, and any other relief the Court deems just.4 2 (Id. at 13.) Plaintiff attaches several documents to his second amended complaint, identified as 3 Exhibit A, as follows: (1) a letter from the Board of Parole Hearings dated April 30, 2020 (id. at 4 16); (2) a letter from the Board of Parole Hearings dated February 2, 2021 (id. at 17); (3) a single- 5 page, untitled document signed by “R. Godwin” and dated September 24, 2020, referencing 6 allegations arising from an incident on August 14, 2020 (id. at 18); (4) an Inmate Appeal 7 Assignment Notice dated February 28, 2020, concerning appeal log number CSPC-5-19-05169 8 (id. at 19); (5) an undated CDCR 22 form prepared by Plaintiff and addressed to “Corcoran VIP 9 Education” (id. at 20); (6) documentation regarding Plaintiff’s educational coursework between 10 2011 and 2020 (id. at 21-24); (7) a Board of Parole Hearings Consultation dated in August 2020 11 (id. at 25); (8) a single-page untitled document regarding Plaintiff’s follow-up appointments and 12 chronos (id. at 26); (9) CDCR Health Care Services Request forms dated in February and March 13 2020, accompanied by an inmate priority pass in Plaintiff’s name (id. at 27); (10) a single-page 14 untitled document including definitions and types of accommodations related to Board of Parole 15 Hearings forms (id. at 28); (11) a KVSP Health Care Services form dated February 20, 2020, 16 signed by “MLaufik, MD” (id. at 29); (12) a CDCR 22 form dated April 15, 2020 (id. at 30); (13) 17 an undated, Spanish language letter from the Prison Law Office to Plaintiff (id. at 31); (14) 18 Plaintiff’s handwritten correspondence, dated May 11, 2020, to Clark Kelso, Federal Receiver (id. 19 at 32-34); and (15) four untitled pages of what is presumed to be Plaintiff’s mail log (id. at 35- 20 38). 21 // 22 // 23

24 3 Plaintiff filed a motion for temporary restraining order on November 22, 2023 (Doc. 52) and a motion for preliminary injunction on November 29, 2023 (Doc. 53). The undersigned issued Findings and Recommendations to 25 deny both motions on April 10, 2024. (Doc. 62.) Following an extension of time, Plaintiff objections are due on or before June 24, 2024. (See Doc. 64.)

26 4 Plaintiff also seeks the appointment of counsel. (Doc. 61 at 13.) A plaintiff does not have a constitutional right to appointed counsel in a section 1983 action. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on 27 other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998). Plaintiff may file a motion seeking the appointment of counsel and should familiarize himself with the legal standards addressed in Rand before doing so. 28 1 B. Plaintiff’s Claims 2 The Court quotes the supporting facts for Plaintiff’s claim verbatim before discussing the 3 claims. 4 Claim One 5 In his first claim for relief, Plaintiff states the following civil right has been violated: 6 “Actio Stricti Juris Protected Liberty Interest Right to Petition the Government for Redress of 7 Grievances; Torture 14th Amend. 28 U.S.C. § 1985.” (Doc. 61 at 3.) As supporting facts for this 8 claim, Plaintiff states as follows: 9 Your Honor Christopher D. Baker, Plaintiff is Develomental Disable wheelchar bound State Prisoner; with a language Barrier[5], 10 untrained in the Law proceeding In Autry Droid; wishes to bifurcate the Complaints; for the Court to retain Jurisdiction over K.V.S.P. 11 Defendants, on the present Complaint, futher humbly request your Honor that when you expedite a ruling on this cause of action, to 12 provide Plaintiff a separate Civil Rights Complaint for S.V.S.P. Defendants. 13 I.P. incurred Due Process Infractions for the B.P.H. Hearing, Olson 14 review, Qualified readers, Spanish interpreters, Interview with Def’s T. Yoder, Kimbrell[], Gerry, suffered Injury the Fact, invation of 15 legal protected interest (a) concreate and particularized (b) eminent not conjetural or hipothetical there is a casual Conection betheen the 16 injury and the misconducts complaint of is traceable to the challenge Action of Def’s and not the result of independent action. EXIBIT pag 17 15-25. [¶] U.S. v. Bohn 890 F.2d 1079. 18 On about 8/14/2020 Def’s c/o J. Otto and D. Hernandez attempted to perpetrate an Entrapment, made a 3” inches slash on I.P. forearm 19 with the restrains, I.P. bleed all day, stopped the bleeding himself. 20 I.P taped the laceration closed with masking tape c/o J. Otto was making the Security Check, in order to deny H.C. Agent Marsh from 21 the Bakersfield internal Affairs Office took pictures of the injuries. EXIBIT pag 17. 22 Petitioner raises additional Due Process Claims relating to 23 denial of access to records, notice opportunity to be present and be heard. Vera v. Gipson 2013 U.S. Dist. Lexis 99275. 18 24 U.S.C.S. § 1029. U.S. v. Bohn 890 F.2d 1079. 25 Intervention in Areas commited within the Fed. Government branches thus in terms of Art. III limitations or Federal jurisdiction, 26 5 In 2003, in Vera v. Tulare Co. Sheriff’s Dept., et al., this Court stated: “Plaintiff has shown no lack of facility with 27 the English language when complaining about the administration of his lawsuit.” (See Case No. 1:98-cv-05265- OWW-LJO, Doc. 218 at 4.) United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial 28 notice of its own records in other cases”). 1 the question of “Standing” is relevant to whether ther the dispute sought to be adjudicated will be in the Liberty protections interest. 2 Cal. Cost. Art. 1 § 3. 3 The Acts of Def’s individually and in concert were malicious intentionally designed to deprive relief; “intentionally 4 discriminatory, Plaintiff resorted to the Warden, Agencies, Assembly, Senate, Ker Co Sup. Ct., ect however neither took any 5 measures against the Heinous, arbitrary acts suffered by I.P., who is a Class of one, individual status wich erects barriers within the 6 reflections of Equal Protections Law presented in diametrically opposed to evenhandedly punishment for similar situated, on the 7 same terms locally applicable to encarcerated persons in California. 42 U.S.C.S. § 1985, 18 U.S.C.S. § 1968 EXIBIT p. 35-38. Castillo 8 v. Colvin 2016 U.S. Dist Lexis 137180, In re San Vicente Medical Partners Ltd. 866 F.2d 1128 9 I.P further demonstrate Supervisory liability existed without any 10 personal participation if the Officials implemented “a Policy so deficient that the Policy itself is a repudiation to Constitutional rights 11 and is the moving force. 12 (Doc. 61 at 3-6.)6 13 Claim Two 14 In his second claim for relief, Plaintiff states the following civil right has been violated: 15 “Deprivation of Civil Rights, Intentional Arbitrary and Discriminatory Equal Protections, Torture, 16 Fraud 42 USC § 1983, FRCP 8, 38, 28 USC § 1343(a)(3), 18 USCS § 371, 17 CFR 240.10(b).” 17 (Doc. 61 at 3.) As supporting facts for this claim, Plaintiff states as follows: 18 On or about Feb 7, 2020* [*others were allowed to attend] C.D.C Officials at Corcoran S.P denied access to a Board of Parole Hearing, 19 On Feb 11, 2020 Inmate Patient was transfer by c/o F. Mariscal, c/o Guizar, Once at the Releasing and Receiving Office, Sgt J. Bourne, 20 Transportation Off. S. Smith and others abducted IP by forcefull means to K.V.S.P, where a Sgt J Flores in retaliation for having filed 21 a different Complaint 22-56150 orquestrated or enacted a vicious attack upon IP, and place him in Ad Seg pag 26 22 Sgt. Felhman in the furtherance of a Conspiratory alliance with: 23 Defendant c/o R. Mailing and K.B, subjected I.P. to Torture, Starvation isolation 24/7 in a cell with dim light, scarce water, and 24 no type of service close to a year 18 USCS § 1201, 28 USC § 1350, C.C.R § 3333 EXIBIT 30 Griviance #108538 25 I.P. a member of the Clark Class sought relief under the Clark 26 Remedial Plan, specifically “Policy,” Communication, interpersonal skills, use of resources, self direction and or fuctional skills due to 27 6 Plaintiff identifies “Kimbrell” as a defendant in this case. However, Plaintiff did not name “Kimbrell” as a 28 defendant in this action. (See Doc. 61 at 1-3.) 1 Cognitive adaptive deficits, wich applies on a case by case basis for an upcoming B.P.H Hearing EXIBIT.27-28 2 I.P. was severely injure at the time, to with multiple broken ribs 3 EXIBIT [blank spaces] and sought help through the Mental Health Dpt. because Defendants in the C.R.C. 22-56150 c/o Baker, c/o 4 Power c/o Quinones, M. Gonzalez, T. Yoder, S. Ballesteros who worked in that Ad.Seg. were subjecting I.P to Tortous conditions 5 isolation 24/7 in a dimly lit room with iether scarce dripping water no type of program, activity, legal resources, services or human 6 contact EXIBIT. 30 28 USC § 1350 pursuant to C.C.R § 3333 at the time only the MH Dept or the warden C. Pfiffer could authorize this 7 Torture practice beyond 10 days [¶] Disability Rights v. Bautista, 930 F3d 1090. 8 The District Court has subject Jurisdiction under A.T.S racial 9 discrimination, Antisemitism, Jus Cogens, Int. Law Sara v. Rio Tinto DLC. 550 F3d 822, 2008 US. App. Lexis 25279. 10 The Central purpose of the initial contacts (interviews) with Psich 11 thech Molina and others, was to obtain help with B.P.H. Exempli Gratia; Interview, idetify needs provide reasonable, access to Forms, 12 regulation, procedures, understand to the best of his ability the process. 13 Defendant K.B. Bowman in lieu of assisting I.P with the disparities 14 and or his discapacity obstructed his access to resources, and futher stiffle his ability to present his case, (Evidentiary Documentation 15 Denial of Education by C.D.C.) EXIBIT pag. 18-24 16 Attorney Margot Mendelson from P.L.O advise I.P was legally entitled for assistance from MH for his Develomental Disabilities 17 and the atrocious conditions of confinement EXIBIT pag 31. 18 Def. K.B. Bowman assumed the pocition of mocking and degrating I.P. advertising Correctionals retaliations Def. K.B. Bowman couple 19 with CCI Gerry fabricated I.P. has an AA College Degree and disseminated this fraudulent data in the C.D.C. coputer thecnologies 20 systems 18 USCS § 1030 C.F.A.A. 21 Def. K.B. Bowman defraud the A.D.A Reasonable Accommodation Panel, the Plan, sophistication involve the inducement or assuming 22 control over Jane Doe 3rd party in the Fraudulent squeme Def. prohibit the Spanish speaking Psych thecs to communicate with I.P. 23 who has a 3.3 G.P.L. 24 And this spurious documentation has had, continues to have, significant prejudicial impact on I.P’s Due Process Administrative 25 Safeguards, Medical, MH, Dental, communications and or 1st. Amend. Rights this device scheme to defraud, had the sole purpose 26 to silence IP. due to the kidnapping, Torture and retaliatory Acts 27 It is unlawful to use any cruel corporal or unusual punishment or to inflict any treatment or allow any lack of treatment 28 Medical Care wich will injure, impair the Health of a Person 1 confined Ashker v. Governor of Ca N.D. Cal. 409.cv.057. 05796 S.B. 733(d)(1)(3)(4)(12)(13)(15) 2 I.P. Developmental Disability derives from a T.B.I inflicted by 3 Tulare Co. Sheriff’s Off (1997), Gunshot by Correctionals (2014) Traumas, Isolation, Callous Indifference to I.P prognosis 4 In the well enunciated statutory Guidelines defined within the letter 5 written to the Fed Receiver it reflects the Clinical Pathways, interdiciplinary, tools, organization of Care process for well 6 designated group of patients with predicable Clinical course whence the this case embodies the Due Process Clause EXIBIT 32-34 7 “excerpts from SATF Z 20 04108 griviance 8 On March 10, 2020 K.B. Bowman performed a Counterfeit evaluation In Absentia due to Def c/o R. Mailing arbitrarily denied 9 access to such consultation. 10 Action wich incidentally resulted in curtailing ungoing care, and significantly impacted I.P. fuctioning, long term prognosis wich is 11 expected to last permanently. 12 On the other hand the “Culpable State of Mind” of Def. K.B. Bowman is explicitly predicated; by her, …contravening the 13 processes governed by the Clark Rem. Plan, mandated for examinations i.e. Tony 3d. 1 phase 1(b), 2 Phase II, 3 Phase III, 14 GAMA, WAIS B, WAIS III a), adaptive, Deficit, Communication, Skills4, Socialization, Skills5), Self Advocacy, use of sources8, Self 15 Direction. 16 K.B. Bowman and all Defendants mentioned in this Complain acted with “reckless disregard” [knew] I.P is a Medical high risk intern, 17 and disregarded the excessive risk to his health and safety I.P. spent nights with chest pain, requesting Health Care, these facts explicitly 18 drew an inference, that a substantial risk of harm existed, Staff added to the misconducts that Defendants were creating. 19 To meet the subjective standard Def’s need not to know the precise 20 nature of the risk, neither have to harbor purpose to harm or the harm will actually occur as long as Def’s have actual knowledge of the 21 risk. 22 To be held liable Defs must disregard a risk that was excessive or pose a risk of harm in the case at hand Def. K.B. Bowman, Jane Doe, 23 c/o Gerry, T. Yoder were just pawns acting in concert participation within the Conspiratory scheme described heretofore by the 22- 24 56150 case Def’s wich corroborates the Casual Link betheen Def’s and the claimed Constitutional Violations [¶] CCR T 15. § 25 3413(a)(1)(2)(3)(5)(6)(A)12(B)(C)(D)(G) 26 Historically “the Law is thought to be predicated upon 2 factors Mens rea and Actus reus wich literally means: “evil mind” and “bad faith,” 27 respectively, balancing factors on wich the Law is predicated. 66 NCL Rev. 283 (1988) 28 1 Def’s Jhon Does (CDC. Doctors) have unreasonably deferred to this Clinical Opinion, False Education indiciums Per Fraudem in the 2 same means and manner without confering with I.P. in a Clinical setting thus exacerbating the Due Process concerns by the context of 3 this case (FERA) [¶] 31 USCS § 3729, 31 USCS § 3730, 31 USCS § 3731, 31 USCS § 3732, 18 USCS § 1341, 18 USCS 1343, U.S. v. 4 French 494 Fed.Appx 734, Sanders v. Allison Engine Co 703 F3d 930, Publius v. Boyer Vine 237 F.Supp.3d 997. 5 Even up to date I.P. continues to be denied proper treatment 6 Defendant E. Momen, has engaged into counterfeiting BWC Body worn camera videos with c/o [blank spaces] while denying MH care 7 has also not performed, the statutory Guidelined assesments or evaluation C.R.P. supra, griviances K.V.S.P. HC 23000128, 8 K.V.S.P. HC 2200039, K.V.S.P. 22001095. 9 Due, that the C.D.C., Doctors have adamantly denied Health Care, the small bump that, once was diagnosed as a Cyst, has develop into 10 large occipal mass/(tumor) 11 Thereby contributing to the exsacerbation of I.P pathology overall fuction impairment vision, audiology, Cognitive anomalities, the 12 surgery has been pending, as well as tomographies for years. 13 In addition, due to the interruption of the Medical Transfer EXIBIT [blank space], I.P. has not been able to follow up on Rhematolgy, 14 Neurology, Cardiology, Advance therapy, Ortho, E.N.T. Specialty, Nursing, Multiple Surgeries, previously programed and many other 15 Clinical Process “just to mention” C.C.R. § 3375.1(a)(b)(1)(2)(3)(4)(6)(7) [¶] Sanchez v. Ca. No. 19-7077. 16 Moran v. Gonzalez 45 F3d 292, Bowoto v. Chevron Corp. 557 F.Supp.2d 1080, Hassen v. Sheikn Khalifa Bin Zayed al Nahban 17 2010 US. Dist Lexis 144819 18 (Doc. 61 at 4, 7-12.)7 19 C. Analysis 20 Prior Screening Orders 21 This Court screened Plaintiff’s original and first amended complaints. (See Docs. 41 & 22 51.) Both orders included the relevant screening and pleading requirements. (Doc. 41 at 2-4 & 23 Doc. 51 at 3-4.) In its first screening order, the Court explained Plaintiff’s “claims against three 24 correctional officers, an interpreter and a social worker employed at SVSP are not before the 25 Court, as those claims were dismissed at the time this action was transferred from the Northern 26 7 Plaintiff identifies or appears to identify the following individuals as defendants in this claim: Mariscal, Guizar, 27 Bourne, Flores, Baker, Power, Quinonez, Gonzalez, Ballesteros, Molina, and Momen. Nevertheless, Plaintiff did not name any of these individuals as a defendant in this action. (See Doc. 61 at 1-3.) 28 1 District.” (Doc. 41 at 4.) The Court construed remaining claims to include Eighth Amendment 2 deliberate indifference to serious medicals needs and First Amendment retaliation, but found the 3 Eighth Amendment claim against Defendant Bowman, a KVSP employee, and Defendant 4 Villegas, employed at another facility, could not proceed in the same suit. (Id. at 5-11.) In that 5 same order, Plaintiff was cautioned that the Court’s duty in screening a complaint did not require 6 it “to wade through exhibits.” (Id. at 11.) Determining the complaint failed to state a claim upon 7 which relief could be granted, Plaintiff was granted leave to file an amended complaint to cure the 8 deficiencies identified in that order. (Id. at 12-13.) 9 In its second screening order, the Court found “Plaintiff’s first amended complaint names 10 individuals that were previously dismissed from this action by District Judge Edward M. Chen on 11 July 19, 2022, to wit: Salinas Valley State Prison (‘SVSP’) employees T. Leffler, R. Luna, 12 Picasso, Phillips and Valle. … Plaintiff may not reassert his claims against Leffler, Luna, Picasso, 13 Phillips and Valle, as those claim[s] were previously dismissed without leave to amend.” (Doc. 51 14 at 4.) The Court again advised Plaintiff that “he may not bring his claims against KVSP 15 defendants and SVSP defendants in the same action if those claims are not related.” (Id. at 5.) It 16 found Plaintiff had “failed to comply with the Court’s previous screening order by continuing to 17 assert claims that do not arise out of the same transaction or occurrence or series of transactions 18 and occurrences in violation of Rules 18 and 20 ….” (Id.) As a result, the Court elected not to 19 complete screening of the first amended complaint, and instead provided Plaintiff with a further 20 explanation about which claims he may bring in this action, and again addressed Plaintiff’s 21 attempt to name additional plaintiffs. (Id. at 5-6.) Plaintiff was further advised that a majority of 22 his federal and state statutory references were not applicable in this action. (Id. at 6.) Noting 23 Plaintiff had been previously provided the legal standards applicable to Eighth Amendment 24 deliberate indifference to serious medical needs claims and First Amendment access to courts 25 claims, Plaintiff was thereafter provided with the legal standards applicable to Fourteenth 26 Amendment Procedural Due Process violations and Equal Protection claims. (Id. at 6-8.) 27 Ultimately, the Court found Plaintiff’s first amended complaint violated Rules 18 and 20 of the 28 Federal Rules of Civil Procedure and the Court’s prior screening order. (Id. at 8.) Plaintiff was 1 granted “one final opportunity to file an amended complaint curing the deficiencies” identified in 2 that order and the first screening order. (Id., emphasis in original.) 3 Rule 8 of the Federal Rules of Civil Procedure 4 The Court previously has advised Plaintiff that a short and plain statement of his claim is 5 all that is required. (See Doc. 41 at 3 & Doc. 51 at 3.) He has also been advised that while detailed 6 factual allegations are not required, reciting the elements of a claim or cause of action, “supported 7 by mere conclusory statements, do not suffice.” (Id.) Further, Plaintiff was previously advised 8 that while factual allegations are accepted as true at screening, “legal conclusions are not.” (Id.) 9 Despite being so advised, Plaintiff’s second amended complaint is often supported only by vague 10 and conclusory statements and includes numerous legal conclusions; the Court is not required to 11 accept either. 12 This Court has expended significant time screening Plaintiff’s complaints. Despite the 13 Court’s best efforts to construe Plaintiff’s claims liberally, each complaint submitted has failed to 14 state any claim upon which relief could be granted. 15 Construing the Claims in the Second Amended Complaint 16 The Court construes Plaintiff’s second amended complaint to present claims arising under 17 the Eighth Amendment for deliberate indifference to serious medical needs, the First Amendment 18 for access to courts and retaliation, and the due process and equal protection clauses of the 19 Fourteenth Amendment. Further, the Court presumes Plaintiff intended to assert those claims 20 against all named Defendants. This is so because despite being advised on two previous occasions 21 that he “must state what each named defendant did that led to the deprivation of [his] 22 constitutional rights” (see Doc. 41 at 12 & Doc. 51 at 8), Plaintiff continues to refer to individuals 23 referenced in his second amended complaint in a global sense. (See, e.g., Doc. 61 at 5 [“Acts of 24 Def’s”] & 10 [“and all Defendants mentioned”].) 25 Next, several individuals are referenced in Plaintiff’s second amended complaint who 26 were not named as defendants in this action. (See notes 5 & 6, ante.) The Court will not 27 specifically address any claims concerning those individuals. Only parties properly named are 28 considered, to wit: Bowman, John and/or Jane Doe, Felham, Gerry, Hernandez, Mailing, Otto, 1 Pfeiffer, and Yoder. 2 Finally, the Court does not repeat the legal standards set forth in prior screening orders 3 applicable to Eighth Amendment deliberate indifference to serious medical needs claims, First 4 Amendment access to courts claims, or Fourteenth Amendment procedural due process claims in 5 its analysis. To the extent the legal standards applicable to other claims were not previously 6 provided in a screening order, those will be included in the Court’s analysis. 7 Eighth Amendment Deliberate Indifference to Serious Medical Needs 8 Liberally construing the second amended complaint, Plaintiff fails to allege a plausible 9 deliberate indifferent to serious medical needs claim against any named defendant. 10 While Plaintiff meets the first prong of the deliberate indifference test by alleging he has a 11 traumatic brain injury and other ailments, Plaintiff fails to meet the second prong of the relevant 12 test. Plaintiff states “Bowman and all Defendants mentioned” in the complaint “acted with 13 ‘reckless disregard’” because they knew Plaintiff “is a Medical high risk intern, and disregarded 14 the excessive risk to his health and safety.” (Doc. 61 at 10.) Plaintiff states he “spent nights with 15 chest pain, requesting Health Care, these facts explicity drew an inference, that a substantial risk 16 of harm existed ….” (Id.) Plaintiff fails to assert any defendant knew Plaintiff was experiencing 17 chest pain or that he wanted to be seen by “Health Care.” And simply stating he is “a Medical 18 high risk” does not reasonably infer liability on the part of any named defendant. Iqbal, 556 U.S. 19 at 678 (“sheer possibility that a defendant has acted unlawfully” is not sufficient to state a 20 cognizable claim, and “facts that are merely consistent with a defendant’s liability” fall short). 21 Plaintiff’s claims against these individuals amount to bare recitations of the elements of a claim or 22 legal conclusions. Id. 23 And Plaintiff’s claims against John or Jane Does, “CDC Doctors”—that they 24 “unreasonably deferred to [a] clinical opinion” or failed to confer with him “in a Clinical setting” 25 (see Doc. 61 at 11)—are similarly insufficient to state a claim. These allegations are vague and 26 conclusory. Iqbal, 556 U.S. at 678. 27 First Amendment Access to Courts 28 Liberally construing the second amended complaint, Plaintiff fails to allege a First 1 Amendment access to courts claim against any named Defendant. Plaintiff once against fails to 2 clearly allege an actual injury or to identify an anticipated or lost underlying claim, and further 3 fails to establish that any such claim is nonfrivolous and arguable. Christopher v. Harbury, 536 4 U.S. 403, 415 (2002); Lewis v. Casey, 518 U.S. 343, 348-49 (1996); Nev. Dep't of Corr. v. 5 Greene, 648 F.3d 1014, 1018 (9th Cir. 2011). 6 First Amendment Retaliation 7 Plaintiff refers to “retaliation” in his second amended complaint. For example, Plaintiff 8 states “Sgt J. Flores in retaliation for having filed a different Complaint 22-56150” placed 9 Plaintiff in administrative segregation. (Doc. 61 at 4.) 10 Prisoners have a First Amendment right to file prison grievances and retaliation against 11 prisoners for exercising this right is a constitutional violation. Rhodes v. Robinson, 408 F.3d 559, 12 566 (9th Cir. 2005). A claim for First Amendment retaliation in the prison context requires: (1) 13 that a state actor took some adverse action against the plaintiff (2) because of (3) the plaintiff’s 14 protected conduct, and that such action (4) chilled the plaintiff’s exercise of his First Amendment 15 rights, and (5) “the action did not reasonably advance a legitimate correctional goal.” Id. at 567- 16 68. To prove the second element, retaliatory motive, a plaintiff must show that his protected 17 activities were a “substantial” or “motivating” factor behind the defendant’s challenged conduct. 18 Brodheim v. Cry, 584 F.3d 1262, 1269, 1271 (9th Cir. 2009). Plaintiff must provide direct or 19 circumstantial evidence of defendant’s alleged retaliatory motive; mere speculation is not 20 sufficient. See McCollum v. CDCR, 647 F.3d 870, 882–83 (9th Cir. 2011); accord, Wood v. 21 Yordy, 753 F.3d 899, 905 (9th Cir. 2014). In addition to demonstrating defendant’s knowledge of 22 plaintiff’s protected conduct, circumstantial evidence of motive may include: (1) proximity in 23 time between the protected conduct and the alleged retaliation; (2) defendant’s expressed 24 opposition to the protected conduct; and (3) other evidence showing that defendant’s reasons for 25 the challenged action were false or pretextual. McCollum, 647 F.3d at 882. 26 Liberally construing the second amended complaint, Plaintiff fails to allege a First 27 Amendment retaliation claim against any named Defendant because he fails to allege that his 28 placement in administrative segregation, or any other retaliatory conduct asserted, did not 1 reasonably advance a legitimate correctional goal. Rhodes, 408 F.3d at 567-68. 2 Fourteenth Amendment Due Process 3 Liberally construing the second amended complaint and to the extent it can be understood 4 to present a due process claim concerning a Board of Parole Hearings proceeding, Plaintiff fails 5 to state a claim upon which relief can be granted. 6 The federal due process protections accorded to state prisoners at parole hearings are very 7 limited. As a threshold matter, “the States are under no duty to offer parole to their prisoners.” 8 Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (citing Greenholtz v. Inmates of Neb. Penal & 9 Corr. Complex, 442 U.S. 1, 7 (1979)). If parole is offered, due process is satisfied when prisoners 10 are “allowed to speak at their parole hearings and to contest the evidence against them,” “afforded 11 access to their records in advance,” and “notified as to the reasons why parole was denied.” Id. 12 Under Swarthout, the substance of the Board of Parole Hearings decision is not subject to federal 13 review: “[I]t is no federal concern...whether California’s ‘some evidence’ rule of judicial review 14 (a procedure beyond what the Constitution demands) was correctly applied.” Id. at 221. “[T]he 15 responsibility for assuring that the constitutionally adequate procedures governing California's 16 parole system are properly applied rests with California courts, and is no part of the Ninth 17 Circuit's business.” Id. at 222. 18 Plaintiff’s exhibits reveal his parole consultation of February 9, 2020, was postponed due 19 to a transfer. (Doc. 61 at 16.) Another of Plaintiff’s exhibits reveals that a consultation “took 20 place on August 14, 2020” that Plaintiff “refused to attend.” (Id. at 17.) Another exhibit that 21 includes only “Page 1 of 3” of a Board of Parole Hearings Consultation, states a consultation 22 occurred on August 14, 2020, and that Plaintiff was not present. (Id. at 25.) Notably, the findings 23 on this partial document indicate that the Board determined Plaintiff had “[n]o vocational training 24 to date,” “[n]o work assignments in Ad. Seg.,” and had “not completed any rehab programs.” (Id.) 25 To the extent Plaintiff asserts that in February 2020 “C.D.C. Officials at Corcoran SP 26 denied [him] access to a Board of Parole Hearing” (Doc. 61 at 4), even accepting that fact as true 27 does not serve to state a claim against any named defendant in this action since all are employed 28 at KVSP. In other words, what may have occurred at Corcoran State Prison in February 2020 is of 1 no significance in this action. 2 Also, to the extent Plaintiff can be understood to allege he did not receive certain 3 evaluations, reviews, or services at his Board of Parole Hearings proceeding held in August 2020, 4 Plaintiff’s own exhibit reveals those are things that “may” happen “before or after the hearings.” 5 (See Doc. 61 at 28.) The word “may” does not mean any of the items or proceedings listed was 6 required to be performed. 7 Plaintiff alleges insufficient facts to establish that he was refused the ability to speak at his 8 parole hearing—indeed, Plaintiff’s exhibit reveals he refused to attend the August 2020 hearing, 9 or to contest the evidence against him, that he was refused access to records in advance, or that he 10 was not notified of the reasons why parole was denied. One of Plaintiff’s exhibits, although 11 partial, gives reasons why parole was denied as noted above. Swarthout, 562 U.S. at 220. 12 Further, to the extent Plaintiff’s allegations here “necessarily implicate[] the validity of the denial 13 of parole,” including any assertion that the Board relied on false reports, a section 1983 action is 14 not the proper vehicle to challenge the Board’s decision; the proper vehicle for such a challenge is 15 a petition for writ of habeas corpus. See, e.g., Brown v. Shaffer, No. 1:18-cv-00470-AWI-HBK 16 (PC), 2021 WL 4441693, at *7 (E.D. Cal. Sept. 28, 2021) (recommending dismissal of due 17 process claim following BPH proceeding and stating “claims that the Board relied on false 18 information is … cognizable only in habeas”); Molina v. Brown, No. CIV S-11-3180 JAM CKD 19 P, 2012 WL 1378498, at *3 (E.D. Cal. Apr. 19, 2012) (“insofar as plaintiff’s claims concerning 20 his August 2010 parole hearing ‘necessarily implicate[ ] the validity of the denial of parole,’ a § 21 1983 action is not the proper vehicle to challenge the Board’s procedures and/or decision”). 22 Fourteenth Amendment Equal Protection 23 It appears Plaintiff is asserting an equal protection “class of one” violation. (See Doc. 61 24 at 5 [“I.P., who is a Class of one, individual status wich erects barriers within the reflections of 25 Equal Protections Law …].) Where state action does not implicate a fundamental right or a 26 suspect classification, the plaintiff can establish an equal protection “class of one” claim by 27 demonstrating that the state actor (1) intentionally (2) treated him differently than other similarly 28 situated persons, (3) without a rational basis. Gerhart v. Lake C’nty, Montana, 637 F.3d 1013, 1 1022 (9th Cir. 2011) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per 2 curiam)). A class of one plaintiff must show that the discriminatory treatment “was intentionally 3 directed just at him, as opposed... to being an accident or a random act.” Jackson v. Burke, 256 4 F.3d 93, 96 (2d Cir. 2001). 5 Liberally construing the second amended complaint, Plaintiff fails to allege an equal 6 protection clause violation against any named defendant. He does not assert facts demonstrating 7 that any individual intentionally treated him differently than other similarly situated persons in the 8 absence of a rational basis. Gerhart, 637 F.3d at 1022. Plaintiff merely alleges elements of the 9 claim in conclusory fashion and asserts a legal conclusion. Neither is sufficient to state a claim for 10 relief. Iqbal, 556 U.S. at 678. 11 Conspiracy Claims 12 It appears Plaintiff also alleges a conspiracy among named Defendants. (See, e.g., Doc. 61 13 at 4 [“Felhman in the futherance of a Conspiratory alliance with …”], 8 [“Bowman couple with 14 CCI Gerry fabricated …”] & 11 [“K.B. Bowman, Jane Doe, c/o Gerry, T. Yoder were just pawns 15 acting in concert participation within the Conspiratory scheme described …”].) 16 In order to recover for conspiracy to deprive a individual of civil rights, a plaintiff is 17 required to allege that the purpose of the conspiracy was to deprive plaintiff of equal protection, 18 privileges and immunities, or to obstruct course of justice, that defendants intended to 19 discriminate against plaintiff, that defendants acted under color of state law and authority, and 20 that the acts done in furtherance of the conspiracy resulted in an injury to plaintiff’s person or 21 property or prevented him from exercising a right or privilege of a United States citizen. See 42 22 U.S.C. § 1985(3); Sykes v. State of California, 497 F.2d 197, 200 (9th Cir. 1974). 23 Conspiracy allegations must be more than mere conclusory statements. Bonnette v. Dick, 24 No. 1:18-cv-0046-DAD-BAM, 2020 WL 3412733, at *4 (E.D. Cal. June 22, 2020) (citing 25 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1979)). A conspiracy claim brought under section 26 1983 requires proof of an agreement or meeting of the minds to violate constitutional rights. 27 Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010). It also requires proof of an actual deprivation 28 of constitutional right. Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) (quoting Woodrum v. 1 Woodward C’nty, Oklahoma, 866 F.2d 1121, 1126 (9th Cir. 1989)). “To be liable, each 2 participant in the conspiracy need not know the exact details of the plan, but each participant must 3 at least share the common objective of the conspiracy.” Franklin v. Fox, 312 F.3d 423, 441 (9th 4 Cir. 2001) (quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 5 (9th Cir. 1989)) (citation omitted). 6 “[A] conclusory allegation of agreement at some unidentified point does not supply 7 adequate facts to show illegality.” Twombly, 550 U.S. at 557. A plaintiff must plead “enough 8 factual matter (taken as true) to suggest that an agreement was made.” Id. at 556. “Allegations 9 that identify ‘the period of the conspiracy, the object of the conspiracy, and certain other actions 10 of the alleged conspirators taken to achieve that purpose,’ [] and allegations that identify ‘which 11 defendants conspired, how they conspired and how the conspiracy led to a deprivation of his 12 constitutional rights,’ [] both have been held to be sufficiently particular to properly allege a 13 conspiracy.” Dyess ex rel. Dyess v. Tehachapi Unified Sch. Dist., No. 1:10-CV-00166-AWI, 2010 14 WL 3154013, at *8 (E.D. Cal. Aug. 6, 2010) (citations omitted). Importantly, to “recover under a 15 § 1983 conspiracy theory, a plaintiff must plead and prove not only a conspiracy, but also a 16 deprivation of rights; pleading and proof of one without the other will be insufficient.” Id. 17 (quoting Dixon v. City of Lawton, Okl., 898 F.2d 1443, 1449 n.6 (10th Cir. 1990)). 18 Even liberally construing the second amended complaint, Plaintiff fails to state a claim for 19 conspiracy because he has not shown that he suffered an actual deprivation of his constitutional 20 rights, as discussed herein. Furthermore, he fails to assert sufficient allegations to demonstrate the 21 existence of an agreement or meeting of the minds between any of the named defendants. Iqbal, 22 556 U.S. at 678. 23 Conditions of Confinement 24 Plaintiff’s second amended complaint can also be liberally construed to assert Eighth 25 Amendment conditions of confinement claims. For example, Plaintiff states he was subjected to 26 “Torture, Starvation isolation 24/7 in a cell with dim light, scarce water, and no type of service 27 for close to a year.” (Doc. 61 at 4; see also id. at 7.) 28 The Eighth Amendment protects prisoners from inhumane methods of punishment and 1 from inhumane conditions of confinement. Farmer, 511 U.S. at 832; Morgan v. Morgensen, 465 2 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison officials have a 3 duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical 4 care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (quotation marks 5 & citations omitted). To establish a violation of the Eighth Amendment, the prisoner must “show 6 that the officials acted with deliberate indifference ….” Labatad v. Corrections Corp. of Am., 714 7 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. C’nty of Washoe, 290 F.3d 1175, 1187 (9th Cir. 8 2002)). 9 The deliberate indifference standard involves both an objective and a subjective prong. 10 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer, 511 U.S. 11 at 834. Second, subjectively, the prison official must “know of and disregard an excessive risk to 12 inmate health or safety.” Id. at 837; Anderson v. C’nty of Kern, 45 F.3d 1310, 1313 (9th Cir. 13 1995). Objectively, extreme deprivations are required to make out a conditions of confinement 14 claim and only those deprivations denying the minimal civilized measure of life’s necessities are 15 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 16 U.S. 1, 9 (1992). Although the Constitution “‘does not mandate comfortable prisons,’” Wilson v. 17 Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)), 18 “inmates are entitled to reasonably adequate sanitation, personal hygiene, and laundry privileges, 19 particularly over a lengthy course of time,” Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 20 1989). Some conditions of confinement may establish an Eighth Amendment violation “in 21 combination” when each would not do so alone, but only when they have a mutually enforcing 22 effect that produces the deprivation of a single, identifiable human need such as food, warmth, or 23 exercise – for example, a low cell temperature at night combined with a failure to issue blankets. 24 Wilson, 501 U.S. at 304-05 (comparing Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) 25 [outdoor exercise required when prisoners otherwise confined in small cells almost 24 hours per 26 day] with Clay v. Miller, 626 F.2d 345, 347 (4th Cir. 1980) [outdoor exercise not required when 27 prisoners otherwise had access to dayroom 18 hours per day]). To say that some prison conditions 28 may interact in this fashion is far from saying that all prison conditions are a seamless web for 1 Eighth Amendment purposes. Id. Amorphous “overall conditions” cannot rise to the level of cruel 2 and unusual punishment when no specific deprivation of a single human need exists. Id. Further, 3 temporarily unconstitutional conditions of confinement do not necessarily rise to the level of 4 constitutional violations. See Anderson, 45 F.3d at 1314 (citing Hoptowit v. Ray, 682 F.2d 1237, 5 1258 (9th Cir. 1982) (abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995) (in 6 evaluating challenges to conditions of confinement, length of time the prisoner must go without 7 basic human needs may be considered)). 8 Subjectively, if an objective deprivation is shown, a plaintiff must show that prison 9 officials acted with a sufficiently culpable state of mind, that of “deliberate indifference.” Wilson, 10 501 U.S. at 303; Labatad, 714 F.3d at 1160. “Deliberate indifference is a high legal standard.” 11 Toguchi, 391 F.3d at 1060. “Under this standard, the prison official must not only ‘be aware of 12 the facts from which the inference could be drawn that a substantial risk of serious harm exists,’ 13 but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). 14 “‘If a prison official should have been aware of the risk, but was not, then the official has not 15 violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson, 290 F.3d at 16 1188). To prove knowledge of the risk, however, the prisoner may rely on circumstantial 17 evidence; in fact, the very obviousness of the risk may be sufficient to establish knowledge. 18 Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). 19 Liberally construing the second amended complaint, Plaintiff fails to allege sufficient 20 facts to state a claim for relief against any named defendant. While Plaintiff appears to 21 specifically name Defendants Bowman, Felhman, Mailing and Yoder, in this claim, he alleges 22 insufficient facts to establish these officials acted with a sufficiently culpable state of mind. 23 Farmer, 511 U.S. at 837. Plaintiff alleges insufficient facts to establish that any named defendant 24 was aware that a substantial risk of serious harm to Plaintiff existed. He does not explain how he 25 was allegedly tortured, starved, or isolated, or what services he was denied. Nor does he explain 26 how “dim light” and “scarce water” were unreasonable or otherwise inadequate. Plaintiff’s 27 assertions are merely recitations of the elements of the claim or legal conclusions, none of which 28 are sufficient. Iqbal, 556 U.S. at 678. 1 Fraudulent Reports 2 As Plaintiff has been previously advised, the creation of false evidence, standing alone, is 3 not actionable under section 1983. (See Doc. 41 at 8.) Therefore, to the extent Plaintiff intended 4 to assert a constitutional claim based upon Defendant Bowman’s purportedly fraudulent report, he 5 fails to do so. 6 Clark Remedial Plan 7 To the extent Plaintiff relies upon being a member of the “Clark Class” and the “Clark 8 Remedial Plan” (see, e.g., Doc. 61 at 7) to support his claims in the second amended complaint, 9 Plaintiff is advised the Clark Remedial Plan cannot be enforced through a section 1983 lawsuit. 10 Section 1983 provides a mechanism to sue state officials and employees for violation of rights 11 guaranteed by the federal Constitution or other federal law. 42 U.S.C. § 1983 (establishing 12 personal liability for deprivations of federal rights). A consent decree or remedial plan is not a 13 source of federal law that can be vindicated under the statute. Green v. McKaskle, 788 F.2d 1116, 14 1123-24 (5th Cir. 1986). An inmate seeking relief pursuant to the Armstrong or Clark remedial 15 plans8 “must pursue his requests via the consent decree or through class counsel,” Crayton v. 16 Terhune, No. C 98-4386 CRB(PR), 2002 WL 31093590, *4 (N.D. Cal. Sept. 17, 2002), not by an 17 independent lawsuit. See also Frost v. Symington, 197 F.3d 348, 358-59 (9th Cir. 1999); Hopkins 18 v. California, No. 2:20-cv-2084 KJM AC, 2021 WL 6135925, at *3 (E.D. Cal. Dec. 29, 2021). 19 References to Criminal Statutes 20 Plaintiff has previously been advised that references to criminal statutes are inapplicable. 21 (Doc. 51 at 6.) Yet Plaintiff continues to reference criminal statutes in his second amended 22 complaint. For example, Plaintiff cites to “18 USCS § 371” at page 4. That statute is titled 23 “Conspiracy to commit offense or to defraud United States” and states: 24 If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency 25 thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall 26 8 The Armstrong and Clark cases are class actions brought against state officials for violation of the Americans with 27 Disabilities Act, the Rehabilitation Act, and the Constitution by present and future prisoners and parolees suffering from certain disabilities. See Armstrong v. Schwarzenegger, 622 F.3d 1058, 1062-63 (9th Cir. 2010); Clark v. 28 California, 739 F. Supp. 2d 1168, 1173-74 (N.D. Cal. 2010). 1 be fined under this title or imprisoned not more than five years, or both. 2 If, however, the offense, the commission of which is the object of the 3 conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for 4 such misdemeanor. 5 18 U.S.C. § 371. Plaintiff also references “18 USCS § 1201,” “18 USCS § 1029,” and “18 USCS 6 § 1030.” The first pertains to crime of kidnapping and the latter two to fraud. References to 7 criminal statutes do not state a claim for relief in a section 1983 proceeding. See Clinton v. 8 Allison, No. 3:23-cv-01471-CAB-SBC, 2024 WL 1859956, at *10 (S.D. Cal. Apr. 29, 2024) 9 (discussing plaintiff’s references to federal and state criminal statutes and finding “criminal 10 statutes do not give rise to civil liability under section 1983”); Jones v. C’nty of Sonoma, No. 23- 11 cv-02730-CRB, 2024 WL 1354496, at *4 (N.D. Cal. Mar. 29, 2024) (finding plaintiff “fails to 12 state a claim under 18 U.S.C. § 1503 because the statute only applies to criminal cases and does 13 not provide a civil cause of action”); Bland v. Gross, No. 1:20-cv-00542-DAD-BAM (PC), 2021 14 WL 120964, at *1 (E.D. Cal. Jan. 13, 2021) (“‘Title 18 of the United States Code is a criminal 15 statute and does not provide individual plaintiffs with a private cause of action.’”) (quoting 16 Kennedy v. World Sav. Bank, FSB, No. 14-cv-05516-JSC, 2015 WL 1814634, at *7 (N.D. Cal. 17 Apr. 21, 2015)); Rope v. Facebook, Inc., No. CV 14-4900 UA (FFM), 2015 WL 13918858, at *2 18 (C.D. Cal. Oct. 26, 2015) (same); Loadholt v. Obama, No. 2:13-cv-2607-MCE-EFB PS, 2015 19 WL 848549, at *3 (E.D. Cal. Feb. 26, 2015) (same). 20 The California Code of Regulations 21 Plaintiff makes numerous references to the California Code of Regulations in his second 22 amended complaint. But a deprivation alleged to have arisen under a California Code of 23 Regulation provision does not state a claim in a section 1983 action. Section 1983 only provides a 24 cause of action for the deprivation of federally protected rights. See e.g., Nible v. Fink, 828 Fed. 25 Appx. 463 (9th Cir. 2020) (violations of Title 15 of the California Code of Regulations do not 26 create private right of action); Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) (section 27 1983 claims must be premised on violation of federal constitutional right); Prock v. Warden, No. 28 1 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at *11–12 (E.D. Cal. Oct. 8, 2013) (noting that 2 several district courts have found no implied private right of action under title 15 and stating that 3 “no § 1983 claim arises for [violations of title 15] even if they occurred”); Parra v. Hernandez, 4 No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. Cal. Nov. 13, 2009) (dismissing 5 prisoner’s claims brought pursuant to Title 15 of the California Code of Regulations); Chappell v. 6 Newbarth, No. 1:06-cv-01378-OWW-WMW (PC), 2009 WL 1211372, at *9 (E.D. Cal. May 1, 7 2009) (holding that there is no private right of action under Title 15 of the California Code of 8 Regulations). 9 D. Further Leave to Amend Should Not Be Granted 10 The undersigned acknowledges a pro se litigant’s pleadings must be construed liberally. 11 This Court’s prior screening orders have done just that. Yet with every opportunity afforded to 12 Plaintiff so that he might cure the deficiencies identified in his pleadings, Plaintiff fails to do so. 13 Plaintiff’s second amended complaint, like his previous complaints, is awash with legal 14 conclusion and jargon, references to inapplicable criminal statutes, and is, simply stated, difficult 15 to decipher. The Court has made every effort to ascertain the claims Plaintiff intended to assert 16 and has done so here. Nevertheless, the Court concludes granting Plaintiff further leave to amend 17 would be futile. “A district court may deny leave to amend when amendment would be futile.” 18 Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013); Lopez v. Smith, 203 F.3d 1122, 1129 19 (9th Cir. 2000) (“Courts are not required to grant leave to amend if a complaint lacks merit 20 entirely”). 21 V. CONCLUSION AND RECOMMENDATION 22 Based on the above, IT IS HEREBY RECOMMENDED that this action be dismissed, 23 without leave to amend, based on Plaintiff’s failure to state a claim upon which relief can be 24 granted. 25 These Findings and Recommendations will be submitted to the district judge assigned to 26 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 27 Findings and Recommendations, a party may file written objections with the Court. The 28 document should be captioned, “Objections to Magistrate Judge’s Findings and 1 | Recommendations.” Failure to file objections within the specified time may result in waiver of 2 || rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 3 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 | ITIS SO ORDERED. >| Dated: _June 10, 2024 | hr 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24