1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TONY ALLEN, Case No. 1:22-cv-00500-FRS (BAM) (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT 13 v. JUDGE TO ACTION 14 ONG, et al., ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 15 Defendants. (ECF No. 15)
16 FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITH PREJUDICE, 17 FOR FAILURE TO STATE A CLAIM (ECF No. 15) 18 FOURTEEN (14) DAY DEADLINE 19 20 Plaintiff Tony Allen (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff’s first amended complaint is 22 currently before the Court for screening. (ECF No. 15.) 23 I. Screening Requirement and Standard 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 27 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 28 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 1 A complaint must contain “a short and plain statement of the claim showing that the 2 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 6 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 7 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 8 To survive screening, Plaintiff’s claims must be facially plausible, which requires 9 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 10 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 11 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 12 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 13 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 14 II. Plaintiff’s Allegations 15 Plaintiff is currently housed at the California Medical Facility in Vacaville, California. 16 The events in the complaint are alleged to have occurred while Plaintiff was housed at North 17 Kern State Prison (“NKSP”) in Delano, California. Plaintiff names as defendants: (1) G. Ong, 18 Licensed Vocational Nurse, NKSP; and (2) Jovita Villanueva, Registered Nurse, NKSP. 19 Plaintiff’s first amended complaint is a photocopy of his original complaint, with several 20 pages of the original complaint duplicated, and additional exhibits that are not incorporated by 21 reference. (Compare ECF No. 1 and ECF No. 15.) 22 Plaintiff alleges as follows: 23 On October 15, 2018, Defendant G. Ong removed sutures from Plaintiff’s left leg. 24 Plaintiff informed Defendant Ong that Orthopedic Surgeon M.Z. Lameer M.D. told Plaintiff that 25 the sutures would remain in his leg until it healed. Plaintiff’s left leg had an infection as a result 26 of Defendant Ong’s violation of CDCR policy, as determined through administrative appeal 27 decision # NKSP SC 18000042. Plaintiff suffered loss of daily functionality and life long loss of 28 function in his left leg as a result of the compelled suture removal. Plaintiff has long term 1 shoulder joint pain attributed to the usage of devices he had to use to move from place to place as 2 he could not use his left leg. Plaintiff was not treated equally in his after surgery care. Plaintiff is 3 a black man and discrimination against Plaintiff is provable through the disregard of the 4 surgeon’s after care orders. 5 Defendant Nurse Villanueva failed to supervise Defendant Ong. Defendant Villanueva 6 should have prevented the removal of the sutures, as the surgeon’s after care instructions did not 7 authorize their actions. Plaintiff went from walking to being unable to walk without the 8 assistance of a device. 9 Plaintiff seeks appointment of counsel, monetary damages, and appointment of experts if 10 jury trial is required. 11 III. Motion to Appoint Counsel 12 Plaintiff is informed that he does not have a constitutional right to appointed counsel in 13 this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other 14 grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to 15 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 16 of Iowa, 490 U.S. 296, 298 (1989). In certain exceptional circumstances the court may request 17 the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 18 Without a reasonable method of securing and compensating counsel, the Court will seek 19 volunteer counsel only in the most serious and exceptional cases. In determining whether 20 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 21 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 22 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 23 The Court has considered Plaintiff’s request, but does not find the required exceptional 24 circumstances. Plaintiff has presented no argument to support this request for counsel. Even if it 25 is assumed that Plaintiff has made serious allegations which, if proved, would entitle him to 26 relief, his case is not exceptional. This Court is faced with similar cases filed almost daily by 27 prisoners who are proceeding pro se who are unable to hire their own attorney. These plaintiffs 28 also must litigate complex cases without the assistance of counsel. 1 In addition, based on a review of the record in this case, the Court does not find that there 2 is a likelihood of success on the merits. As discussed below, the Court finds that the first 3 amended complaint fails to state a claim. 4 IV. Discussion 5 Plaintiff’s first amended complaint fails to state a cognizable claim for relief. Despite 6 being provided with the relevant pleading and legal standards, Plaintiff has been unable to cure 7 the identified deficiencies. 8 A. Federal Rule of Civil Procedure 8 9 Pursuant to Rule 8, a complaint must contain “a short and plain statement of the claim 10 showing that the pleader is entitled to relief.” Fed. R. Civ. P.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TONY ALLEN, Case No. 1:22-cv-00500-FRS (BAM) (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT 13 v. JUDGE TO ACTION 14 ONG, et al., ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL 15 Defendants. (ECF No. 15)
16 FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITH PREJUDICE, 17 FOR FAILURE TO STATE A CLAIM (ECF No. 15) 18 FOURTEEN (14) DAY DEADLINE 19 20 Plaintiff Tony Allen (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff’s first amended complaint is 22 currently before the Court for screening. (ECF No. 15.) 23 I. Screening Requirement and Standard 24 The Court is required to screen complaints brought by prisoners seeking relief against a 25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 27 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 28 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 1 A complaint must contain “a short and plain statement of the claim showing that the 2 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 6 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 7 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 8 To survive screening, Plaintiff’s claims must be facially plausible, which requires 9 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 10 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 11 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 12 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 13 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 14 II. Plaintiff’s Allegations 15 Plaintiff is currently housed at the California Medical Facility in Vacaville, California. 16 The events in the complaint are alleged to have occurred while Plaintiff was housed at North 17 Kern State Prison (“NKSP”) in Delano, California. Plaintiff names as defendants: (1) G. Ong, 18 Licensed Vocational Nurse, NKSP; and (2) Jovita Villanueva, Registered Nurse, NKSP. 19 Plaintiff’s first amended complaint is a photocopy of his original complaint, with several 20 pages of the original complaint duplicated, and additional exhibits that are not incorporated by 21 reference. (Compare ECF No. 1 and ECF No. 15.) 22 Plaintiff alleges as follows: 23 On October 15, 2018, Defendant G. Ong removed sutures from Plaintiff’s left leg. 24 Plaintiff informed Defendant Ong that Orthopedic Surgeon M.Z. Lameer M.D. told Plaintiff that 25 the sutures would remain in his leg until it healed. Plaintiff’s left leg had an infection as a result 26 of Defendant Ong’s violation of CDCR policy, as determined through administrative appeal 27 decision # NKSP SC 18000042. Plaintiff suffered loss of daily functionality and life long loss of 28 function in his left leg as a result of the compelled suture removal. Plaintiff has long term 1 shoulder joint pain attributed to the usage of devices he had to use to move from place to place as 2 he could not use his left leg. Plaintiff was not treated equally in his after surgery care. Plaintiff is 3 a black man and discrimination against Plaintiff is provable through the disregard of the 4 surgeon’s after care orders. 5 Defendant Nurse Villanueva failed to supervise Defendant Ong. Defendant Villanueva 6 should have prevented the removal of the sutures, as the surgeon’s after care instructions did not 7 authorize their actions. Plaintiff went from walking to being unable to walk without the 8 assistance of a device. 9 Plaintiff seeks appointment of counsel, monetary damages, and appointment of experts if 10 jury trial is required. 11 III. Motion to Appoint Counsel 12 Plaintiff is informed that he does not have a constitutional right to appointed counsel in 13 this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other 14 grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to 15 represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. 16 of Iowa, 490 U.S. 296, 298 (1989). In certain exceptional circumstances the court may request 17 the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 18 Without a reasonable method of securing and compensating counsel, the Court will seek 19 volunteer counsel only in the most serious and exceptional cases. In determining whether 20 “exceptional circumstances exist, a district court must evaluate both the likelihood of success on 21 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 22 complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted). 23 The Court has considered Plaintiff’s request, but does not find the required exceptional 24 circumstances. Plaintiff has presented no argument to support this request for counsel. Even if it 25 is assumed that Plaintiff has made serious allegations which, if proved, would entitle him to 26 relief, his case is not exceptional. This Court is faced with similar cases filed almost daily by 27 prisoners who are proceeding pro se who are unable to hire their own attorney. These plaintiffs 28 also must litigate complex cases without the assistance of counsel. 1 In addition, based on a review of the record in this case, the Court does not find that there 2 is a likelihood of success on the merits. As discussed below, the Court finds that the first 3 amended complaint fails to state a claim. 4 IV. Discussion 5 Plaintiff’s first amended complaint fails to state a cognizable claim for relief. Despite 6 being provided with the relevant pleading and legal standards, Plaintiff has been unable to cure 7 the identified deficiencies. 8 A. Federal Rule of Civil Procedure 8 9 Pursuant to Rule 8, a complaint must contain “a short and plain statement of the claim 10 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed factual allegations 11 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). Plaintiff must 13 set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on 14 its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While factual allegations 15 are accepted as true, legal conclusions are not. Id.; see also Twombly, 550 U.S. at 556–57; Moss, 16 572 F.3d at 969. 17 Here, Plaintiff’s complaint is short, but it is not a plain statement of his claims showing 18 that he is entitled to relief. As Plaintiff was previously warned, he must allege facts that support 19 his asserted claims. Plaintiff failed to provide any further information regarding his interactions 20 with Defendant Ong or Villanueva, instead providing a copy of the same allegations in the 21 original complaint. 22 B. Exhibits 23 To the extent Plaintiff relies on the additional exhibits submitted with his first amended 24 complaint, Plaintiff has failed to provide any explanation as to the significance of these exhibits 25 or to otherwise incorporate them into his allegations. 26 While “much liberality is allowed in construing pro se complaints, a pro se litigant cannot 27 simply dump a stack of exhibits on the court and expect the court to sift through them to 28 determine if some nugget is buried somewhere in that mountain of papers, waiting to be 1 unearthed and refined into a cognizable claim.” Lam v. Cal. Dep’t of Corr. & Rehab., No. 1:23- 2 CV-01167 BAM PC, 2023 WL 8701254, at *2 (E.D. Cal. Dec. 15, 2023), report and 3 recommendation adopted, No. 1:23-CV-1167 JLT BAM PC, 2024 WL 201269 (E.D. Cal. Jan. 18, 4 2024) (quoting Samtani v. City of Laredo, 274 F. Supp. 3d 695, 698 (S.D. Tex. 2017)). “The 5 Court will not comb through attached exhibits seeking to determine whether a claim possibly 6 could have been stated where the pleading itself does not state a claim. In short, [Plaintiff] must 7 state a claim, not merely attach exhibits.” Stewart v. Nevada, No. 2:09-CV-01063-PMP-GWF, 8 2011 WL 588485, at *2 (D. Nev. Feb. 9, 2011). 9 C. Supervisory Liability 10 Plaintiff has not alleged that Defendant Villanueva was even present during the removal 11 of his sutures, and has therefore failed to allege that she was personally involved in their removal. 12 Insofar as Plaintiff is attempting to sue Defendant Villanueva based solely upon her supervisory 13 role, he may not do so. Liability may not be imposed on supervisory personnel for the actions or 14 omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676– 15 77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of 16 Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 17 2002). 18 Supervisors may be held liable only if they “participated in or directed the violations, or 19 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 20 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. 21 Bennett, 567 F.3d 554, 570 (9th Cir. 2009). “The requisite causal connection may be established 22 when an official sets in motion a ‘series of acts by others which the actor knows or reasonably 23 should know would cause others to inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d at 24 570. Supervisory liability may also exist without any personal participation if the official 25 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 26 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 27 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other 28 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). When a defendant holds a supervisory 1 position, the causal link between such defendant and the claimed constitutional violation must be 2 specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 3 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement 4 of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 5 673 F.2d 266, 268 (9th Cir. 1982). 6 D. Eighth Amendment – Deliberate Indifference to Serious Medical Need 7 A prisoner’s claim of inadequate medical care constitutes cruel and unusual punishment in 8 violation of the Eighth Amendment where the mistreatment rises to the level of “deliberate 9 indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 10 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate 11 indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure 12 to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and 13 wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately 14 indifferent.” Jett, 439 F.3d at 1096. 15 A defendant does not act in a deliberately indifferent manner unless the defendant “knows 16 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 17 837 (1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609 18 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is 19 shown where there was “a purposeful act or failure to respond to a prisoner’s pain or possible 20 medical need” and the indifference caused harm. Jett, 439 F.3d at 1096. In applying this 21 standard, the Ninth Circuit has held that before it can be said that a prisoner’s civil rights have 22 been abridged, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ 23 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter 24 Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105–06). Even gross 25 negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood 26 v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 27 Further, a “difference of opinion between a physician and the prisoner—or between 28 medical professionals—concerning what medical care is appropriate does not amount to 1 deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. 2 Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard, 3 744 F.3d 1076, 1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir. 4 2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must 5 show that the course of treatment the doctors chose was medically unacceptable under the 6 circumstances and that the defendants chose this course in conscious disregard of an excessive 7 risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation 8 marks omitted). 9 Plaintiff fails to allege sufficient facts to demonstrate that he was experiencing a serious 10 medical need or that any defendant was deliberately indifferent to such a need. At most, Plaintiff 11 alleges a difference in opinion between Defendant Ong and Dr. Lameer regarding the appropriate 12 time to remove the sutures in Plaintiff’s leg following surgery. To the extent Plaintiff alleges a 13 deliberate indifference claim related to pain that went untreated after the removal of his sutures, 14 Plaintiff alleges that he was provided with devices to assist him in moving from place to place, 15 and does not allege that he sought further pain management or was denied such treatment from 16 any named defendant. Plaintiff fails to state a cognizable claim for relief for deliberate 17 indifference to a serious medical need. 18 E. Fourteenth Amendment – Equal Protection 19 The Equal Protection Clause requires that persons who are similarly situated be treated 20 alike. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, (1985); Shakur v. 21 Schriro, 514 F.3d 878, 891 (9th Cir. 2008). An equal protection claim may be established by 22 showing that defendants intentionally discriminated against a plaintiff based on his membership 23 in a protected class, Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 24 702– 03 (9th Cir. 2009); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), or that 25 similarly situated individuals were intentionally treated differently without a rational relationship 26 to a legitimate state purpose, Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 601–02 (2008); 27 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 28 F.3d 580, 592 (9th Cir. 2008). 1 Plaintiff fails to state a cognizable equal protection claim. Plaintiff alleges only that he is 2 a black man and the disregard of the surgeon’s after care instructions proves discrimination 3 against Plaintiff. These conclusory allegations are not sufficient to establish that Plaintiff was 4 treated differently then any similarly situated individuals. 5 F. Prison Regulations and Policies 6 To the extent that any Defendant has not complied with applicable state statutes or prison 7 regulations, these deprivations do not support a claim under § 1983. Section 1983 only provides 8 a cause of action for the deprivation of federally protected rights. See, e.g., Nible v. Fink, 828 9 Fed. Appx. 463 (9th Cir. 2020) (violations of Title 15 of the California Code of Regulations do 10 not create private right of action); Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) 11 (section 1983 claims must be premised on violation of federal constitutional right); Prock v. 12 Warden, No. 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at *11–12 (E.D. Cal. Oct. 8, 2013) 13 (noting that several district courts have found no implied private right of action under title 15 and 14 stating that “no § 1983 claim arises for [violations of title 15] even if they occurred.”); Parra v. 15 Hernandez, No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. Cal. Nov. 13, 2009) 16 (granting motion to dismiss prisoner’s claims brought pursuant to Title 15 of the California Code 17 of Regulations); Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW (PC), 2009 WL 18 1211372, at *9 (E.D. Cal. May 1, 2009) (holding that there is no private right of action under 19 Title 15 of the California Code of Regulations) ; Tirado v. Santiago, No. 1:22-CV-00724 BAM 20 PC, 2022 WL 4586294, at *5 (E.D. Cal. Sept. 29, 2022), report and recommendation adopted, 21 No. 1:22-CV-00724 JLT BAM PC, 2022 WL 16748838 (E.D. Cal. Nov. 7, 2022) (same). 22 V. Conclusion and Recommendation 23 For the reasons discussed, the Court finds that Plaintiff’s first amended complaint fails to 24 state a cognizable claim for relief. Despite being provided with the relevant legal standards, 25 Plaintiff has been unable to cure the deficiencies in his complaint. Further leave to amend is not 26 warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 27 /// 28 /// 1 Accordingly, IT IS HEREBY ORDERED as follows: 2 1. Plaintiff’s motion to appoint counsel, (ECF No. 15, p. 22), is DENIED, without prejudice; 3 and 4 2. The Clerk of the Court is directed to randomly assign a District Judge to this action. 5 * * * 6 Furthermore, IT IS HEREBY RECOMMENDED that this action be dismissed for failure 7 to state a cognizable claim upon which relief may be granted. 8 * * * 9 These Findings and Recommendations will be submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 11 fourteen (14) days after being served with these Findings and Recommendations, the parties may 12 file written objections with the court. The document should be captioned “Objections to 13 Magistrate Judge’s Findings and Recommendations.” Objections, if any, shall not exceed 14 fifteen (15) pages or include exhibits. Exhibits may be referenced by document and page 15 number if already in the record before the Court. Any pages filed in excess of the 15-page 16 limit may not be considered. The parties are advised that failure to file objections within the 17 specified time may result in the waiver of the “right to challenge the magistrate’s factual 18 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter 19 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 IT IS SO ORDERED. 21
22 Dated: January 20, 2026 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 23
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