Tracy Lavial Collier v. Covello, et al.

• Court: District Court, E.D. California
• Decided: November 17, 2025
• Docket: 2:25-cv-00874
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TRACY LAVIAL COLLIER, No. 2:25-cv-0874 AC P 12 Plaintiff, 13 v. ORDER 14 COVELLO, et al., 15 Defendants. 16 17 Plaintiff is a state inmate who filed this pro se civil rights action pursuant to 42 U.S.C. 18 § 1983 (Civil Rights Act of 1964), and 42 U.S.C. § 12132 (the Americans with Disabilities Act 19 (“ADA”)). Pending before the court is plaintiff’s complaint, motion for an extension of time to 20 file a late application to proceed in forma pauperis, and a motion to proceed in forma pauperis. 21 ECF Nos. 1, 7, 8. 22 I. Motions to Proceed In Forma Pauperis and for an Extension of Time 23 Because plaintiff initially failed to pay the filing fee or submit an application to proceed in 24 forma pauperis with his civil rights complaint, the court ordered him to do so within thirty days. 25 ECF No. 4. After that deadline passed, the court granted plaintiff an additional twenty-one days 26 to pay the filing fee or apply to proceed in forma pauperis. ECF No. 6. Within the time frame 27 provided, plaintiff filed a motion for an extension of time to file a late application to proceed in 28 //// 1 forma pauperis and a motion to proceed in forma pauperis under 28 U.S.C. § 1915. ECF Nos. 7, 2 8. 3 In light of the court’s order giving plaintiff additional time to file the application and the 4 filing of plaintiff’s application within that timeframe, the court denies plaintiff’s motion for an 5 extension of time as unnecessary. Because plaintiff has submitted a declaration pursuant to 28 6 U.S.C. § 1915(a)(2), showing that he cannot afford to pay the entire filing fee, his motion to 7 proceed in forma pauperis is granted.1 8 II. Statutory Screening of Prisoner Complaints 9 The court is required to screen complaints brought by prisoners seeking relief against “a 10 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). A 11 claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. 12 Williams, 490 U.S. 319, 325 (1989). The court may dismiss a claim as frivolous if it is based on 13 an indisputably meritless legal theory or factual contentions that are baseless. Id. at 327. The 14 critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable 15 legal and factual basis. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by 16 statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 17 In order to avoid dismissal for failure to state a claim a complaint must contain more than 18 “naked assertion[s],” “labels and conclusions,” or “a formulaic recitation of the elements of a 19 cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007). In other words, 20 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 21 statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim upon which the 22 court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial 23 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 24 1 This means that plaintiff is allowed to pay the $350.00 filing fee in monthly installments that 25 are taken from the inmate’s trust account rather than in one lump sum. 28 U.S.C. §§ 1914(a), 26 1915(b)(1). As part of this order, the prison is required to remove an initial partial filing fee from plaintiff’s trust account. See 28 U.S.C. § 1915(b)(1). A separate order directed to the appropriate 27 agency requires monthly payments of twenty percent of the prior month’s income to be taken from plaintiff’s trust account. These payments will be taken until the $350 filing fee is paid in 28 full. See 28 U.S.C. § 1915(b)(2). 1 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation 2 omitted). When considering whether a complaint states a claim, the court must accept the 3 allegations as true, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and construe the 4 complaint in the light most favorable to the plaintiff, Jenkins v. McKeithen, 395 U.S. 411, 421 5 (1969) (citations omitted). 6 III. Factual Allegations of the Complaint 7 The complaint alleges that defendants Covello, Rogers, Clegg, Mendoza, and Nelson 8 violated plaintiff’s rights under the First and Eighth Amendments to the United States 9 Constitution and Title II of the Americans with Disabilities Act (“ADA”). ECF No. 1. More 10 specifically, the complaint alleges the following. 11 On August 9, 2024, non-defendant Dr. Wong, classified plaintiff as DPM, which is a 12 designation for inmates with “severe mobility restrictions” who “use[] assistive devices other than 13 a [wheelchair] to ambulate” and “cannot walk up/down stairs because of disability.” Id. at 9, 19. 14 Based on plaintiff’s new designation, Dr. Wong ordered plaintiff be transferred to an “ADA 15 medical prison” and that plaintiff receive “follow-up surgery and physical therapy” for his knee. 16 Id. at 9. Mule Creek State Prison (“MCSP”) is not recommended due to unleveled ground. Id. at 17 9, 44. 18 A few days later, defendant Mendoza informed plaintiff that he was approved for transfer, 19 made a remark suggesting he does not believe plaintiff has an ADA disability, and told plaintiff 20 that it would be faster if he did not go to his classification committee hearing. Id. at 9. When 21 plaintiff met with his EOP treatment team, non-defendant Dr. Diaz questioned why plaintiff was 22 being transferred to a higher level of care based on a medical transfer. Id. Because plaintiff did 23 not attend the hearing, he did not know why. Id. 24 On September 1, 2024, after defendant Mendoza received a notice and copy of plaintiff’s 25 grievance against her, she made angry remarks, told plaintiff that if it were up to her, he would go 26 to the SHU, told him he will be transferred when she wants to transfer him, and made fun of 27 plaintiff’s writing and spelling in the 602 grievance. Id. at 10. The next day, defendant Mendoza 28 told plaintiff the Classification Staff Representative (“CSR”) rejected her decision to transfer him 1 to a higher-level prison and ordered plaintiff be transferred to a low-level prison for medical 2 accommodations. Id. Defendant Mendoza called plaintiff a faker and when plaintiff complained, 3 defendant Mendoza told plaintiff to “go suicidal, go suicidal weirdo, you aint special, you’ll keep 4 waiting.” Id. at 10-11. Defendant Mendoza then tried to get a nurse to change plaintiff’s ADA 5 status, but the nurse told Mendoza she needed to email Dr. Wong. Id. 11. The next day, when 6 plaintiff met with Dr. Wong for a follow up appointment regarding his knee pain, Dr. Wong 7 informed plaintiff that defendant Mendoza emailed Dr. Wong stating she saw plaintiff walk 8 without his walker, that plaintiff does not need a walker, and that Dr. Wong should consider 9 voiding plaintiff’s ADA status. Id. at 11-12. Defendant Mendoza’s conduct violated plaintiff’s 10 HIPAA medical privacy rights. Id. at 12. Defendant Mendoza also deceitfully caused plaintiff to 11 miss his committee hearing, again. Id. 12 On September 19, 2024, plaintiff asked about his medical transfer and was told by a non- 13 defendant counselor that although the notes said he was ADA and an ADA transfer had been 14 ordered over thirty days ago, defendant Mendoza had not processed some paperwork and his 15 ADA status in the computer was pending. Id. On September 22, 2024, defendant Nelson refused 16 plaintiff’s request for classification paperwork. Id. 17 On September 24, 2024, plaintiff asked defendant Clegg why he had not been transferred 18 based on Dr. Wong’s transfer order for ADA accommodation. Id. at 13. Defendant Clegg 19 responded that he hates when an inmate files grievances against him and then try to talk to him; 20 plaintiff “can stop filing 602 complaints because they are not helping [plaintiff]”; “I run the 21 show”; and “you’re not going anywhere until your RVR from Lancaster State Prison, get found 22 guilty and then you’re going back to high-level Lancaster level four.” Id. Plaintiff responded that 23 Clegg could not use a January 2024 rules violation report (“RVR”) to stop his ADA transfer since 24 his January 2024 RVR did not stop his transfer to MCSP, and that it was a violation of plaintiff’s 25 due process rights to do so because California Department of Corrections and Rehabilitation 26 (“CDCR”) regulations require RVRs to be served and heard within forty-five days. Id. at 13-14. 27 On September 25, 2024, when plaintiff tried to talk to defendant Rogers, Rogers 28 acknowledged that he knew who plaintiff was and had seen all the emails against his medical 1 transfer and his hunger strike. Id. at 14. Defendant Rogers told plaintiff that they did not want to 2 transfer him until the RVR from Lancaster is resolved and that Lancaster is not cooperating with 3 plaintiff’s request for video footage, and offered to speed-up plaintiff’s ADA medical transfer if 4 plaintiff waived his due process rights to the video evidence and plead guilty. Id. at 15. Plaintiff 5 declined and continued his hunger strike. Id. 6 On September 28, 2024, plaintiff was found not guilty of the RVR from Lancaster. Id. 7 On October 9, 2024, after filing over ten grievances, contacting the Prison Law Office and chief 8 medical staff, and going on hunger strike, plaintiff went before a unit classification committee. 9 When he brought up that defendants Clegg and Mendoza had retaliated against him by changing 10 him to C status, which means no yard, phone, dayroom, package or any other privileges, 11 defendant Rogers refused to address the issue and told plaintiff to add it to his 602 grievances. Id. 12 On or about October 15, 2024, plaintiff was finally transferred to RJD State Prison. Id. 13 Medical transfers usually take 72 hours to fifteen days, however, due to defendants’ retaliatory 14 conduct, plaintiff’s transfer took more than sixty days. Id. at 16. Defendants’ conduct caused 15 plaintiff unnecessary knee pain by delaying his treatment upon transfer, and mental anguish. Id. 16 at 3, 8-10, 16. 17 Defendants Covello, Rogers, and Clegg, as warden, captain, and correctional counselor II 18 (“CCII”), respectively, have a duty to ensure that the MCSP employees “are properly trained and 19 supervised to fulfil the penological interests of all prisons.” Id. at 1-2, 7. They violated this duty 20 and failed to correct other defendants’ violations of plaintiff’s rights. Id. at 7. Defendants 21 Rogers, Clegg, Mendoza, and Nelson “are responsible for the safety and security” at MCSP. Id. 22 Defendant Rogers, who supervises defendants Clegg and Mendoza, and defendant Clegg, who 23 supervises defendant Mendoza, were present at all of plaintiff’s medical transfer committee 24 hearings and deliberately indifferent to plaintiff’s ADA accommodation for immediate transfer to 25 a facility that can house inmates designated DPM. Id. at 7, 13-14.2 26 2 Plaintiff attaches thirty-two pages of exhibits. ECF No. 1 at 18-50. The exhibits include an 27 1845/7410 medical entry dated August 9, 2024, id. at 19-20; medical progress notes dated August 9, 2024, and September 3, 2024, id. at 22-23, 25-26; grievance and appeals decisions dated 28 (continued…) 1 By way of relief, plaintiff seeks compensatory and punitive damages against all 2 defendants. Id. at 6, 17. 3 IV. Claims for which Plaintiff has Sufficiently Stated a Right to Relief 4 The court has conducted the screening required by 28 U.S.C. § 1915A(a) and finds that 5 the complaint, liberally construed, states a First Amendment retaliation claim against defendants 6 Mendoza and Clegg based on their interference with plaintiff’s ADA transfer and changing 7 plaintiff’s privilege status to C-status designation after plaintiff filed grievances against them. 8 V. Failure to State a Claim 9 For the reasons that follow, the allegations in the complaint are not sufficient to state any 10 claims against defendants Covello, Rogers, and Nelson, and/or any other claims against 11 defendants Mendoza and Clegg. 12 A. Defendant Covello 13 Plaintiff fails to state a claim against defendant Covello because a warden cannot be held 14 responsible for the conduct of his subordinates just because he is a supervisor (warden), and 15 plaintiff has not alleged facts that Covello personally participated in, directed, and/or knew of the 16 violations and failed to prevent them. Moreover, to the extent plaintiff is attempting to state a 17 failure to train claim against Covello he fails to do so because he has not alleged facts from which 18 the court can infer Covello knew officers at MCSP were retaliating against and/or denying ADA 19 accommodations to inmates who filed grievances and/or that more or different training was 20 necessary to prevent the alleged constitutional violations before they occurred. 21 B. Defendant Rogers 22 Plaintiff fails to state any claim against defendant Rogers because Rogers cannot be held 23 liable based on the conduct of his subordinates, there are no allegations that Rogers was 24 responsible for training defendants Mendoza and/or Clegg and that he knew there was a need for 25

26 December 12 and 25, 2024, id. at 28-29, 36-37, 39-40, 48; three grievances dated September 4, 2024, September 20, 2024, and October 9, 2024, id. at 30-31, 41-42, 49-50; two reasonable 27 accommodation panel responses each dated October 11, 2024, id. at 32; a reasonable accommodation request dated September 23, 2024, id. at 34; and two classification committee 28 chronos dated August 29, 2024, and October 9, 2024, id. at 44-47. 1 more or different training to prevent the alleged constitutional violations, and all other allegations 2 against him are conclusory and/or otherwise insufficient. 3 Plaintiff fails to state a First Amendment retaliation claim against defendant Rogers 4 because the complaint lacks factual allegations that Rogers said or did anything or heard and/or 5 saw anyone else say or do something that would suggest his conduct was motivated by plaintiff’s 6 grievances. To the extent plaintiff is attempting to state a Fourteenth Amendment process 7 procedural due process violation based on Roger’s failure to address plaintiff’s concerns 8 regarding his C status and change in privileges, plaintiff fails to state a claim because it is well- 9 established that prisoners have no constitutional right to a particular classification, even if it 10 results in the temporary loss of privileges. The temporary loss of yard, phone, dayroom, and 11 package privileges do not impose an atypical and significant hardship on plaintiff beyond what is 12 a normal part of prison life, such as to warrant procedural protections. 13 C. Defendant Mendoza 14 To the extent plaintiff is attempting to state an Eighth Amendment claim based on 15 defendant Mendoza’s offensive and/or vulgar language, the claim fails because such statements, 16 alone, do not violate the Eighth Amendment. Also, to the extent plaintiff is attempting to state a 17 violation under the Health Insurance Portability and Accountability Act (“HIPAA”) against 18 defendant Mendoza, he fails to do so because HIPAA does not provide a private right of action 19 for a claim and HIPAA cannot be enforced through § 1983. 20 D. Defendant Clegg 21 Plaintiff fails to state any other claims not identified above against defendant Clegg 22 because Clegg cannot be held responsible for the conduct of his subordinates, and there are no 23 allegations that Clegg was responsible for training defendant Mendoza and that he knew there 24 was a need for more or different training to prevent the alleged constitutional violations. Also, to 25 the extent plaintiff is attempting to state a due process claim against Clegg based on the failure to 26 hear plaintiff’s RVR within forty-five days, plaintiff fails to do so because a violation of prison 27 policy is not grounds for a § 1983 claim. A § 1983 claim must be based on a violation of a 28 federal right. The Fourteenth Amendment does not require any timeline for holding a prison 1 disciplinary hearing; nor is the court aware of any federal statutory right to a hearing within the 2 time specified. 3 E. Defendant Nelson 4 It is not entirely clear what type(s) of claim(s) plaintiff is attempting to state against 5 defendant Nelson. To the extent he is attempting to state a violation of his due process rights 6 based on Nelson’s denial of plaintiff’s classification paperwork, he fails because, as discussed 7 above, he must allege a violation of a federal right. Because plaintiff has no federal right to a 8 particular classification or process with respect to his classification, he has not alleged a § 1983 9 claim against defendant Nelson. 10 F. Eighth Amendment Deliberate Indifference Claim 11 Plaintiff fails to state an Eighth Amendment medical deliberate indifference claim against 12 any defendant because he has not alleged that any defendant was aware plaintiff had a serious 13 medical need—i.e. needed treatment for his knee pain and/or surgery. The complaint merely 14 alleges that defendant Mendoza knew plaintiff had an order for a medical transfer based on the 15 need to be in a facility that could meet his ADA needs, and suggests that defendants Rogers and 16 Clegg were aware of the same. The court cannot infer from these facts that plaintiff had a serious 17 medical need, much less that defendants knew his transfer was necessary to treat a serious 18 medical need. 19 Moreover, plaintiff has attached evidence that on August 9, 2024, when he was classified 20 DPM, he was counseled on surgical and non-surgical medical treatment options for his knee and 21 that he refused, multiple times, against medical advice, a referral to an orthopedic specialist, that 22 he indicated he was “not interested in further diagnostic testing,” and that he “would like to 23 continue current therapy.” Id. at 26. The court cannot infer from those records, or the 24 classification hearing records that any defendant knew transfer was necessary for plaintiff to 25 receive adequate treatment and/or surgery. See id. at 19, 25-26, 44-47. Quite to the contrary, the 26 records suggest plaintiff was already receiving the treatment he was willing to receive at MCSP 27 and transfer would not change his treatment plan or result in surgery. Id. 28 //// 1 G. Americans with Disability Act Reasonable Accommodations Claim 2 To the extent plaintiff is attempting to state an ADA discrimination claim, he fails because 3 he has not identified a proper defendant and because plaintiff has not presented factual allegations 4 from which the court can infer that he was excluded from participating in or denied the benefits of 5 any programs, services, or activities provided by a public entity (e.g. MCSP and/or CDCR) or 6 otherwise discriminated against by a public entity and that he was otherwise qualified to 7 participate or receive those benefits. More importantly, plaintiff has not alleged that any 8 defendant said or did anything or heard and/or saw anyone else say or do something that would 9 suggests that their conduct was motivated by plaintiff’s disability. 10 H. Section 1983 Conspiracy 11 Plaintiff also appears to be attempting to state a conspiracy claim against defendants. To 12 the extent that is the case, plaintiff fails to state a § 1983 conspiracy claim against any defendant 13 because mere allegations of a conspiracy and conclusory allegations that defendant acted jointly 14 are insufficient. 15 Because it appears to the court that plaintiff may be able to allege facts to fix some of 16 these problems, plaintiff will be given the option to amend the complaint. 17 VI. Options from Which Plaintiff Must Choose 18 Based on the court’s screening, plaintiff has a choice to make. After selecting an option 19 from the two options listed below, plaintiff must return the attached Notice of Election form to 20 the court within 21 days from the date of this order. 21 The first option available to plaintiff is to proceed immediately against defendants 22 Mendoza and Clegg on the First Amendment retaliation claim. By choosing this option, 23 plaintiff will be agreeing to voluntarily dismiss defendants Covello, Rogers, Nelson, the 24 ADA, conspiracy, and Eighth and Fourteenth Amendment claims, and any other claims 25 against defendants Mendoza and Clegg. The court will proceed to immediately serve the 26 complaint and order a response from defendant Mendoza and Clegg on the First 27 Amendment retaliation claim. 28 The second option available to plaintiff is to file an amended complaint to fix the 1 problems described in Section IV against defendants Covello, Rogers, Nelson, Mendoza, 2 Clegg and on the ADA, conspiracy, and Eighth and Fourteenth Amendment claims. If 3 plaintiff chooses this option, the court will set a deadline in a subsequent order to give 4 plaintiff time to file an amended complaint. 5 VII. Plain Language Summary of this Order for Party Proceeding Without a Lawyer 6 Some of the allegations in the complaint state claims against the defendants and some do 7 not. You have sufficiently stated retaliation claims against defendants Mendoza and Clegg, but 8 you have not stated any other claims against them or against defendants Covello, Rogers, and 9 Nelson. 10 You have a choice to make. You may either (1) proceed immediately on your First 11 Amendment retaliation claims against defendants Mendoza and Clegg and voluntarily dismiss the 12 other claims and defendants; or, (2) try to amend the complaint. To decide whether to amend 13 your complaint, the court has attached the relevant legal standards that may govern your claims 14 for relief. See Attachment A. Pay particular attention to these standards if you choose to file an 15 amended complaint. 16 VIII. CONCLUSION 17 In accordance with the above, IT IS HEREBY ORDERED that: 18 1. Plaintiff’s motion for an extension of time (ECF No. 7) is DENIED as unnecessary. 19 2. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 8) is GRANTED. 20 3. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 21 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 22 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 23 appropriate agency filed concurrently herewith. 24 4. Plaintiff’s claims against defendants Covello, Rogers, and Nelson do not state claims 25 for which relief can be granted. Plaintiff’s ADA and Eighth and Fourteenth Amendment due 26 process claims also do not state claims for which relief can be granted. 27 5. Plaintiff has the option to proceed immediately on his First Amendment retaliation 28 claim against defendants Mendoza and Clegg as set forth in Section III above, or to file an 1 | amended complaint. 2 6. Within 21 days from the date of this order, plaintiff shall complete and return the 3 || attached Notice of Election form notifying the court whether he wants to proceed on the screened 4 || complaint or whether he wants to file an amended complaint. 5 7. If plaintiff does not return the form, the court will assume that he is choosing to 6 || proceed on the complaint as screened and will recommend dismissal without prejudice of 7 || plaintiff's ADA, conspiracy, Eighth and Fourteenth Amendment claims and defendants Covello, 8 | Rogers, and Nelson. 9 | DATED: November 17, 2025 10 ththienr—Chnp—e_ ALLISON CLAIRE 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1]

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 TRACY LAVIAL COLLIER, No. 2:25-cv-0874 AC P 11 Plaintiff, 12 v. NOTICE OF ELECTION 13 COVELLO, et al., 14 Defendants. 15 16 Check one: 17 _____ Plaintiff wants to proceed immediately on his First Amendment retaliation claim against 18 defendants Mendoza and Clegg without amending the complaint. Plaintiff understands 19 that by choosing this option, the ADA, conspiracy, Eighth and Fourteenth Amendment 20 claims and defendants Covello, Rogers, and Nelson will be voluntarily dismissed without 21 prejudice pursuant to Federal Rule of Civil Procedure 41(a). 22 _____ Plaintiff wants time to file an amended complaint. 23 24 DATED:_______________________

25 Tracy Lavial Collier Plaintiff pro se 26 27 28 1 Attachment A 2 This Attachment provides, for informational purposes only, the legal standards that may 3 apply to your claims for relief. Pay particular attention to these standards if you choose to file an 4 amended complaint. 5 I. Legal Standards Governing Amended Complaints 6 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 7 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 8 423 U.S. 362, 370-71 (1976). Also, the complaint must specifically identify how each named 9 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 10 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 11 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 12 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 13 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 14 268 (9th Cir. 1982) (citations omitted). 15 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 16 his amended complaint complete. See Local Rule 220. This is because, as a general rule, an 17 amended complaint replaces the prior complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) 18 (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 19 2012). Therefore, in an amended complaint, every claim and every defendant must be included. 20 II. Legal Standards Governing Substantive Claims for Relief 21 A. Personal Involvement 22 “Liability under § 1983 must be based on the personal involvement of the defendant,” 23 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (citing May v. Enomoto, 633 F.2d 24 164, 167 (9th Cir. 1980)), and “[v]ague and conclusory allegations of official participation in civil 25 rights violations are not sufficient,” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) 26 (citations omitted). “A person ‘subjects’ another to the deprivation of a constitutional right, 27 within the meaning of section 1983, if he does an affirmative act, participates in another’s 28 affirmative acts, or omits to perform an act which he is legally required to do that causes the 1 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 2 1978) (citation omitted). In other words, to state a claim for relief under section 1983, plaintiff 3 must link each individual defendant with some affirmative act or omission that shows a violation 4 of plaintiff’s federal rights. 5 B. Supervisory Liability 6 “There is no respondeat superior liability under section 1983,” Taylor v. List, 880 F.2d 7 1040, 1045 (9th Cir. 1989) (citation omitted), which means that a supervisor cannot be held 8 responsible for the conduct of his subordinates just because he is their supervisor. “A supervisor 9 is only liable for constitutional violations of his subordinates if the supervisor participated in or 10 directed the violations, or knew of the violations and failed to act to prevent them.” Id. 11 C. Failure to Train 12 The inadequacy of training may serve as a basis for liability under section 1983 where the 13 failure to train amounts to deliberate indifference to the rights of persons with whom the 14 subordinates come into contact. Ting v. United States, 927 F.2d 1504, 1512 (9th Cir. 1991). To 15 satisfy the deliberate indifference standard, plaintiff “must allege facts to show that the 16 [defendant] ‘disregarded the known or obvious consequence that a particular omission in their 17 training program would cause . . . employees to violate citizens’ constitutional rights.’” Flores v. 18 County of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014) (citing Connick v. Thompson, 563 19 U.S. 51, 51-52 (2001)). A pattern of similar violations is ordinarily necessary to state a claim for 20 failure to train, because absent such a pattern the individual or entity cannot have been aware that 21 their failure to train would likely cause further constitutional violations. Id.; see also Davis v. 22 City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989) (same standard for inadequate training 23 applies to inadequate supervision). 24 Isolated incidents by two deputies do not suffice to put the sheriff on “‘notice that a course 25 of training is deficient in a particular respect,’ nor that the absence of such a course ‘will cause 26 violations of constitutional rights.’” Flores, 758 F.3d at 1159 (quoting Connick, 563 U.S. at 62); 27 see also Lake v. City of Vallejo, No. 2:19-cv-1439 DAD KJN, 2023 WL 4086885, at *13, 2023 28 U.S. Dist. LEXIS 106255, at *38 (E.D. Cal. June 20, 2023) (plaintiff “must—at a minimum— 1 allege more than two incidents that predate the incident involving plaintiff to be considered 2 plausible notice to defendant . . . that there was a failure to train”). 3 D. Federal Right 4 Section 1983 provides in relevant part: 5 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of 6 Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the 7 deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action 8 at law, suit in equity, or other proper proceeding for redress . . . . 9 42 U.S.C. § 1983. Accordingly, “the requirements for relief under [§] 1983 have been articulated 10 as: (1) a violation of rights protected by the Constitution or created by federal statute, 11 (2) proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.” 12 Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991) (emphasis added). 13 An officer’s violation of state laws and/or regulations is not grounds for a § 1983 claim. 14 See Case v. Kitsap County Sheriff’s Dept., 249 F.3d 921, 930 (9th Cir. 2001) (quoting Gardner v. 15 Howard, 109 F.3d 427, 430 (8th Cir 1997) (“[T]here is no § 1983 liability for violating prison 16 policy. [Plaintiff] must prove that [the official] violated his constitutional right . . .”)). Violations 17 of state law and regulations cannot be remedied under § 1983 unless they also violate a federal 18 constitutional or statutory right. See Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009) 19 (section 1983 claims must be premised on violation of federal constitutional right); Sweaney v. 20 Ada Cty., Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (section 1983 creates cause of action for 21 violation of federal law); Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996) 22 (federal and state law claims should not be conflated; “[t]o the extent that the violation of a state 23 law amounts the deprivation of a state-created interest that reaches beyond that guaranteed by the 24 federal Constitution, Section 1983 offers no redress”). 25 E. Conspiracy 26 To state a claim for conspiracy under 42 U.S.C. § 1983, plaintiff must plead specific facts 27 showing an agreement or meeting of minds between the defendants to violate his constitutional 28 rights. Woodrum v. Woodward Cty., 866 F.2d 1121, 1126 (9th Cir. 1989); Karim-Panahi v. Los 1 Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988) (“A mere allegation of conspiracy 2 without factual specificity is insufficient.” (citation omitted)). Plaintiff must also show how an 3 actual deprivation of his constitutional rights resulted from the alleged conspiracy. Id. “‘To be 4 liable, each participant in the conspiracy need not know the exact details of the plan, but each 5 participant must at least share the common objective of the conspiracy.’” Franklin v. Fox, 312 6 F.3d 423, 441 (9th Cir. 2002) (quoting United Steel Workers of Am. v. Phelps Dodge Corp., 865 7 F.2d 1539, 1541 (9th Cir. 1989)). Additionally, plaintiff must show that defendants “conspired or 8 acted jointly in concert and that some overt act [was] done in furtherance of the conspiracy.” 9 Sykes v. State of California, 497 F.2d 197, 200 (9th Cir. 1974). 10 F. First Amendment Retaliation 11 To state a claim for retaliation, a plaintiff must allege defendants (1) took adverse action 12 against plaintiff (2) because of (3) plaintiff’s protected conduct, and that the action (4) would chill 13 an inmate of reasonable firmness from future protected conduct and (5) lacked a legitimate 14 correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 15 An adverse action is an act (or failure to act) by prison officials which causes harm, and 16 “the mere threat of harm can be an adverse action, regardless of whether it is carried out.” 17 Brodheim v. Cry, 584 F.3d 1262, 1269-70 (9th Cir. 2009) (emphasis in original). To show 18 defendants retaliated “because of” the plaintiff’s actions, the plaintiff must show the defendants 19 were motivated by his protected conduct. See Crawford-El v. Britton, 523 U.S. 574, 592 (1998) 20 (proof of defendant’s general animosity toward plaintiff would not necessarily show her conduct 21 was motivated by plaintiff’s protected conduct). Protected conduct refers to acts taken by the 22 plaintiff that are protected by the First Amendment and may include lawsuits and grievances, as 23 well as verbal complaints or threats to sue. See Rhodes, 408 F.3d at 567 (prisoners have a First 24 Amendment right to file prison grievances and pursue civil litigation); Shepard v. Quillen, 840 25 F.3d 686, 688 (9th Cir. 2016) (prisoners have “First Amendment right to report staff 26 misconduct”); Jones v. Williams, 791 F.3d 1023, 1036 (9th Cir. 2015) (threats to sue constitute 27 protected conduct); Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017) (form of complaint, 28 including verbal, “is of no constitutional significance”). 1 The alleged adverse action need not itself be an independent constitutional violation. Pratt 2 v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (to prevail on a retaliation claim, plaintiff “need not 3 establish an independent constitutional interest” was violated); cf. Rizzo v. Dawson, 778 F.2d 4 527, 531-32 (9th Cir. 1985) (transfer of prisoner to a different prison constituted adverse action 5 for purposes of retaliation claim). 6 G. Eighth Amendment 7 i. Medical Deliberate Indifference 8 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 9 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 10 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires plaintiff 11 to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition 12 could result in further significant injury or the unnecessary and wanton infliction of pain,’” and 13 (2) “the defendant’s response to the need was deliberately indifferent.” Id. (some internal 14 quotation marks omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)). 15 A plaintiff can establish deliberate indifference “by showing (a) a purposeful act or failure to 16 respond to a prisoner’s pain or possible medical need and (b) harm caused by the 17 indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference “may appear 18 when prison officials deny, delay or intentionally interfere with medical treatment, or it may be 19 shown by the way in which prison physicians provide medical care.” Hutchinson v. United 20 States, 838 F.2d 390, 394 (9th Cir. 1988) (citation omitted). “[A] complaint that a physician has 21 been negligent in diagnosing or treating a medical condition does not state a valid claim of 22 medical mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106. 23 A difference of opinion between an inmate and prison medical personnel—or between 24 medical professionals—regarding the appropriate course of treatment does not by itself amount to 25 deliberate indifference to serious medical needs. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th 26 Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). A difference of opinion rises to 27 the level of deliberate indifference when “the chosen course of treatment ‘was medically 28 unacceptable under the circumstances,’ and was chosen ‘in conscious disregard of an excessive 1 risk to [the prisoner’s] health.’” Toguchi, 391 F.3d at 1058 (alteration in original) (quoting 2 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). 3 To state a claim for deliberate indifference based on a delay in receiving treatment, the 4 delay must have been harmful. See Shapley v. Nev. Bd. of State Prison Comm’rs., 766 F.2d 404, 5 407 (9th Cir. 1985) (delay of surgery did not constitute deliberate indifference unless delay was 6 harmful). 7 ii. Conditions of Confinement 8 “The Constitution does not mandate comfortable prisons, but neither does it permit 9 inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks and 10 citation omitted). “[A] prison official violates the Eighth Amendment only when two 11 requirements are met.” Id. at 834. 12 “First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Id. (quoting 13 Wilson v. Seiter, 501 U.S. 294, 298 (1991)). To be sufficiently serious, “a prison official’s act or 14 omission must result in the denial of ‘the minimal civilized measure of life’s necessities.’” Id. 15 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). “[R]outine discomfort inherent in the 16 prison setting” does not rise to the level of a constitutional violation. Johnson v. Lewis, 217 F.3d 17 726, 732 (9th Cir. 2000). Rather, “extreme deprivations are required to make out a[n] [Eighth 18 Amendment] conditions-of-confinement claim.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). 19 “More modest deprivations can also form the objective basis of a violation, but only if such 20 deprivations are lengthy or ongoing.” Johnson, 217 F.3d at 732. 21 Second, the prison official must subjectively have a “sufficiently culpable state of mind,” 22 “one of ‘deliberate indifference’ to inmate health or safety.” Farmer, 511 U.S. at 834 (citations 23 omitted). “[T]he official must both be aware of facts from which the inference could be drawn 24 that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. He 25 must then fail to take reasonable measures to lessen the substantial risk of serious harm. Id. at 26 847. If a prison official’s response to a known risk is reasonable, they “cannot be found liable.” 27 Id. at 845. 28 Allegations of only verbal harassment do not state an Eighth Amendment claim. Somers 1 v. Thurman, 109 F.3d 614, 622 (9th Cir. 1997) (stating that “the exchange of verbal insults 2 between inmates and guards is a constant, daily ritual observed in this nation’s prisons” of which 3 “we do not approve,” but which do not violate the Eighth Amendment); Oltarzewski v. Ruggiero, 4 830 F.2d 136, 139 (9th Cir. 1987) (vulgar comments do not violate Eighth Amendment). 5 H. Fourteenth Amendment Procedural Due Process 6 i. Classification 7 It is well-established that prisoners have no constitutional right to a particular 8 classification, even if it results in loss of privileges. See Myron v. Terhune, 476 F.3d 716, 718 9 (9th Cir. 2007) (concluding California prisoner does not have liberty interest in residing at a level 10 III prison as opposed to level IV); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) 11 (emphasizing that “‘a prisoner has no constitutional right to a particular classification status’”) 12 (quoting Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976)); see also Sunkett v. Boerum, No. 1:17- 13 cv-1137 HBK, 2024 WL 4369900, at *4, 2024 U.S. Dist. LEXIS 178253, at *10–11 (E.D. Cal. 14 Sept. 30, 2024) (“It is well settled that prisoners have no constitutional right to a particular 15 classification status, even if the classification status results in a loss of privileges.”) 16 ii. Disciplinary Hearing 17 “Prison disciplinary proceedings are not part of a criminal prosecution, and the full 18 panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 19 U.S. 539, 556 (1974). Rather, with respect to prison disciplinary proceedings that include the loss 20 of good-time credits, an inmate must receive (1) twenty-four-hour advanced written notice of the 21 charges against him, id. at 563-64; (2) “a written statement by the factfinders as to the evidence 22 relied on and reasons for the disciplinary action,” id. at 564 (citation and internal quotation marks 23 omitted); (3) an opportunity to call witnesses and present documentary evidence where doing so 24 “will not be unduly hazardous to institutional safety or correctional goals,” id. at 566; (4) 25 assistance at the hearing if he is illiterate or if the matter is complex, id. at 570; and (5) a 26 sufficiently impartial fact finder, id. at 570-71. A finding of guilt must also be “supported by 27 some evidence in the record.” Superintendent v. Hill, 472 U.S. 445, 454 (1985). 28 The Wolff court noted that its decision was not meant to “suggest . . . that the procedures required 1 . . . for the deprivation of good time would also be required for the imposition of lesser penalties 2 such as the loss of privileges.” Wolff, 418 U.S. at 571 n.19. When a prisoner does not lose any 3 good-time credits, he may also demonstrate that he is entitled to the due process outlined in Wolff 4 by alleging facts showing that the disciplinary “impose[d] atypical and significant hardship on 5 [him] in relation to the ordinary incidents of prison life.” Sandin v. O’Conner, 515 U.S. 472, 484 6 (1995). 7 I. Americans with Disabilities Act 8 Title II of the ADA applies to inmates within state prisons. Pennsylvania Dept. of 9 Corrections v. Yeskey, 524 U.S. 206 (1998). To state a claim for violation of Title II of the ADA, 10 a plaintiff must allege four elements: 11 (1) [H]e is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public 12 entity’s services, programs, or activities; (3) he was either excluded from participation in or denied the benefits of the public entity’s 13 services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of 14 benefits, or discrimination was by reason of [his] disability. 15 O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007); see also Thompson v. 16 Davis, 295 F.3d 890, 895 (9th Cir. 2002); Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 17 2001). 18 “A plaintiff can allege disability discrimination in the provision of inmate services, 19 programs, or activities under the ADA or the Rehabilitation Act by pleading either (1) 20 discrimination based on disparate treatment or impact, or (2) denial of reasonable modifications 21 or accommodations.” Cravotta v. County of Sacramento, 717 F. Supp. 3d 941, 956 (E.D. Cal. 22 2024); see Dunlap v. Ass’n of Bay Area Gov’ts, 996 F. Supp. 962, 965 (N.D. Cal. 1998) (“[T]he 23 ADA not only protects against disparate treatment, it also creates an affirmative duty in some 24 circumstances to provide special, preferred treatment, or ‘reasonable accommodation.’”). To 25 support such a disparate impact claim, a plaintiff must demonstrate that the policy has the “effect 26 of denying meaningful access to public services.” K.M. ex rel. Bright v. Tustin Unified Sch. 27 Dist., 725 F.3d 1088, 1102 (9th Cir. 2013). Although § 12132 does not expressly provide for 28 reasonable accommodations, the implementing regulations provide that “[a] public entity shall 1 make reasonable modifications in policies, practices, or procedures when the modifications are 2 necessary to avoid discrimination on the basis of disability, unless the public entity can 3 demonstrate that making the modifications would fundamentally alter the nature of the service, 4 program, or activity.” 28 C.F.R. § 35.130(b)(7)(i); see also Pierce v. County of Orange, 526 F.3d 5 1190, 1215 (9th Cir. 2008). 6 “[I]nsofar as Title II [of the ADA] creates a private cause of action for damages against 7 the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates 8 state sovereign immunity.” United States v. Georgia, 546 U.S. 151, 159 (2006) (emphasis in 9 original). The proper defendant in an ADA action is the public entity responsible for the alleged 10 discrimination. United States v. Georgia, 546 U.S. 151, 153 (2006). State correctional facilities 11 are “public entities” within the meaning of the ADA. See 42 U.S.C. § 12131(1)(A) & (B); Penn. 12 Dept. of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998); Armstrong v. Wilson, 124 F.3d 1019, 1025 13 (9th Cir. 1997). ADA claims may not be brought against state officials in their individual 14 capacities. Stewart v. Unknown Parties, 483 F. App’x 374, 374 (9th Cir. 2012) (citing Lovell v. 15 Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002)); Garcia v. S.U.N.Y. Health Scis. Ctr. of 16 Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (“[N]either Title II of the ADA nor § 504 of the 17 Rehabilitation Act provides for individual capacity suits against state officials.” (citations 18 omitted)). 19 Compensatory damages are available under the ADA when plaintiff demonstrates that the 20 discrimination he experienced was the result of deliberate indifference, which “requires both 21 knowledge that a harm to a federally protected right is substantially likely, and a failure to act 22 upon that the likelihood.” Duvall, 260 F.3d at 1139 (citations omitted). “When the plaintiff has 23 alerted the public entity to his need for accommodation . . ., the public entity is on notice that an 24 accommodation is required, and the plaintiff has satisfied the first element of the deliberate 25 indifference test.” Id. at 1139. “[I]n order to meet the second element of the deliberate 26 indifference test, a failure to act must be a result of conduct that is more than negligent, and 27 involves an element of deliberateness.” Id. (citations omitted). 28 //// 1 J. HIPAA claim 2 The Ninth Circuit has definitively declared “HIPAA itself provides no private right of 3 action.” Garmon v. County of Los Angeles, 828 F.3d 837, 847 (9th Cir. 2016) (quoting Webb v. 4 Smart Document Solutions, LLC, 499 F.3d 1078, 1081 (9th Cir. 2007)). Other circuits have 5 explicitly found that HIPAA cannot be enforced through Section 1983. Adams v. Eureka Fire 6 Prot. Dist., 352 Fed. Appx. 137, 139 (8th Cir. 2009) (“Since HIPAA does not create a private 7 right, it cannot be privately enforced either via § 1983 or through an implied right of action”); 8 Sneed v. Pan Am Hosp., 370 Fed. Appx. 47, 50 (11th Cir. 2010) (“We decline to hold that 9 HIPAA creates a private cause of action or rights that are enforceable through § 1983”).

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