(PC) Rushdan v. Gear et al, No. 1:2016cv01017 - Document 21 (E.D. Cal. 2018)
Court Description: ORDER Directing Clerk of Court to Randomly Assign District Judge to Action; FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action for Failure to State a Claim Upon Which Relief May be Granted re 11 , signed by Magistrate Judge Barbara A. McAuliffe on 5/15/18. This Case has been Assigned to Chief Judge Lawrence J. O'Neill and Magistrate Judge Barbara A. McAuliffe. The New Case No. is: 1:16-cv-01017-LJO-BAM. Referred to Judge O'Neill. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SALADIN RUSHDAN, 12 Plaintiff, 13 v. 14 R. GEAR, et al., 15 Defendants. 16 21 FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED FOURTEEN (14) DAY DEADLINE 18 20 ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION (ECF No. 11) 17 19 Case No. 1:16-cv-01017-BAM (PC) I. Background Plaintiff Saladin Rushdan, also known as Robert Woods, (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 22 The original complaint was filed in this action on July 5, 2016. (ECF No. 1.) On July 15, 23 2016, this action was transferred from the Sacramento Division of the United States District Court 24 for the Eastern District of California. (ECF No. 4.) On March 1, 2017, Plaintiff consented to the 25 jurisdiction of a United States Magistrate Judge. (ECF No. 9.) 26 On May 26, 2017, a screening order was entered, finding Plaintiff had failed to state a 27 cognizable claim and granting Plaintiff leave to file an amended complaint. (ECF No. 10.) On 28 June 26, 2017, Plaintiff filed a first amended complaint. (ECF No. 11.) This action was then 1 1 dismissed for failure to state a cognizable claim. (ECF No. 12.) Plaintiff appealed to the United 2 States Court of Appeals for the Ninth Circuit. (ECF No. 14.) 3 On April 19, 2018, this action was vacated and remanded to this Court. (ECF No. 19.) 4 Specifically, the Ninth Circuit reviewed de novo whether the undersigned validly entered 5 judgment on behalf of the district court. The Ninth Circuit found that because Plaintiff’s action 6 was dismissed before the named defendants had been served, and “all parties, including unserved 7 defendants, must consent to proceed before the magistrate judge for jurisdiction to vest, Williams 8 v. King, 875 F.3d 500, 503–04 (9th Cir. 2017),” the undersigned’s September 25, 2017 order was 9 vacated and remanded for further proceedings. (Id. at 2.) The Ninth Circuit issued its mandate 10 on May 11, 2018. (ECF No. 20.) Based on the foregoing, Plaintiff’s first amended complaint, filed on June 26, 2017, is 11 12 currently before the Court for screening. 13 II. Screening Requirement and Standard 14 The Court is required to screen complaints brought by prisoners seeking relief against a 15 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 16 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 17 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 18 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. 19 § 1915(e)(2)(B)(ii). 20 A complaint must contain “a short and plain statement of the claim showing that the 21 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 22 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 25 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 26 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 27 28 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 2 1 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially 2 plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each 3 named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678 (quotation marks 4 omitted); Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that 5 a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of 6 satisfying the plausibility standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 7 F.3d at 969. Summary of Plaintiff’s Allegations 8 A. 9 Plaintiff is currently housed at California State Prison, Los Angeles County in Lancaster, 10 California. The events in the complaint are alleged to have occurred while Plaintiff was housed 11 in Corcoran State Prison. Plaintiff names the following defendants: (1) R. Gear, Trust Account 12 Officer; (2) D.M. Singh, Business Manager; (3) F. Vasquez, Deputy Warden; (4) M.V. Sexton, 13 Associate Warden; and (5) M. Voong, Chief of Appeals. (ECF No. 11.) Plaintiff sues the 14 individuals in their individual capacities. 15 In Claim I, Plaintiff alleges interference with court access. Plaintiff has been for decades 16 diagnosed and treated for Keloids and complications. Plaintiff filed multiple civil rights lawsuits 17 to get medical care, many of which ended up settling with provision of medical care. There was a 18 violation of the settlement, and Plaintiff filed another lawsuit. Plaintiff filed a state court action 19 for breach of contract and deliberate indifference and through normal procedures, submitted his in 20 forma pauperis form for approval to the Prison Trust Account Office at Corcoran. Defendant 21 Gear is the Trust Office Accounting Officer and is responsible for prisoner accounts. The Trust 22 Officer refused to process Plaintiff’s in forma pauperis form because Plaintiff listed his “real and 23 legal name” first on the form and listed his prison commitment name as an AKA. On December 24 3, 2014, the forms were rejected with notes telling Plaintiff that he must list his real name 25 (Rushdan) as an AKA and put his prison commitment name (Woods) as the real name. On 26 December 11, 2014, Plaintiff resubmitted the forms with an Informal Level 22-form, stating that 27 both names are legible along with Plaintiff’s prison number. Defendant Gear rejected Plaintiff’s 28 in forma pauperis application. Refusal to process the in forma pauperis form prejudiced 3 1 Plaintiff’s existing litigation and prevented Plaintiff from meeting the filing deadlines. As a 2 result, Plaintiff’s state complaint was rejected. Defendant Gear created a new policy since 3 Plaintiff had never been denied court access before. Because he could not get his form processed, 4 the state court never processed his lawsuit and rejected it. 5 Plaintiff filed a grievance against Defendant Gear. Defendant Singh is a business 6 manager and agreed and concurred with Gear’s discriminatory action on First Level Appeal. 7 Defendant Singh wrongly upheld the new policy and failed to remedy the wrong. Defendant 8 Singh failed to properly supervise his subordinate who committed a wrongful act. Defendant 9 Sexton is the Associate Warden and upheld the Amended Second Level Response. Defendant 10 Vasquez is Chief Deputy Warden and reviewed the appeal at the Second Level and concurred 11 with the first level. Defendant Vasquez upheld the creation and continuance of such a policy and 12 was grossly negligent in supervising the subordinates. Defendant Voong, third level appeals 13 coordinator, refused to process the grievance. 14 In Claim II, Plaintiff alleges that Defendant Voong refused to process Plaintiff’s inmate 15 grievance at the Third Level which unreasonably limited Plaintiff’s right of access to the court, 16 making exhaustion impossible. Failure to review his 602 effectively stopped Plaintiff from filing 17 a state law complaint for breach of contract. Defendant Voong is the Chief Officer of Appeals 18 who refused to answer Plaintiff’s 602 grievance on the Third Level review. Defendant Voong 19 has refused on more than on occasion to process Plaintiff’s 602 grievances and failed to properly 20 respond to the grievance. Plaintiff was delayed unreasonably from advancing his breach of 21 contract state court action and had intended to file a federal civil case. Defendant Voong acted 22 with gross negligence in supervising the subordinates. 23 In Claim III, Plaintiff alleges religious discrimination. Plaintiff is an African American 24 Muslim. A sincere aspect of this faith is to alter one’s name to reflect the faith. Plaintiff’s former 25 name of “Woods” does not conform to his faith. Plaintiff alleges that he changed his name in 26 1983 according to American Law, from “Woods” to his real name of Saladin Rushdan. There is 27 no legitimate penological purpose for Plaintiff to list his legal name as an AKA. Both of 28 Plaintiff’s names were written on the in forma pauperis form along with his prison number to 4 1 clearly identify Plaintiff. Defendant Gear displayed personal bigotry and racism because Plaintiff 2 did not submit anything unreasonable. Plaintiff’s free exercise has been threatened by requiring 3 his prison name. 4 5 6 7 8 Plaintiff seeks compensatory damages of $250,000 against each defendant and punitive damages and to terminate all prison officials involved. (ECF No. 11). B. Discussion 1. Supervisory Liability In general, Plaintiff may not hold a defendant liable solely based upon their supervisory 9 positions. Liability may not be imposed on supervisory personnel for the actions or omissions of 10 their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons 11 v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 12 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 13 Supervisors may be held liable only if they “participated in or directed the violations, or knew of 14 the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 15 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 567 16 F.3d 554, 570 (9th Cir. 2009). 17 Plaintiff names various individuals as defendants who hold supervisory level positions for 18 processing appeals: D.M. Singh, Business Manager; F. Vasquez, Deputy Warden; M.V. Sexton, 19 Associate Warden; and M. Voong, Chief of Appeals. 20 Plaintiff was previously advised that a constitutional violation cannot be premised solely 21 on the theory of respondeat superior, and Plaintiff must allege that the supervisory Defendants 22 participated in or directed conduct associated with his claims. Plaintiff attempts to do so by 23 alleging that each supervisor upheld Defendant Gear’s denial of the in forma pauperis form, 24 created a policy, and were grossly negligent by failing to remedy Defendant Gear’s denial of the 25 in forma pauperis form. Nonetheless, Plaintiff seeks liability against these supervisors for actions 26 in the course of reviewing the grievance and related appeal. As explained below, liability under 27 § 1983 cannot be premised upon processing appeals. And, as explained more fully below, there is 28 no constitutional violation and therefore the supervisors cannot be liable. 5 1 2. Access to Court 2 Inmates have a fundamental constitutional right of access to the courts. Lewis v. Casey, 3 518 U.S. 343, 346 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Phillips v. 4 Hust, 588 F.3d 652, 655 (9th Cir. 2009). To state a viable claim for relief, Plaintiff must show 5 that he suffered an actual injury, which requires “actual prejudice to contemplated or existing 6 litigation.” Nevada Dept. of Corrs. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis, 7 518 U.S. at 348) (internal quotation marks omitted); Christopher v. Harbury, 536 U.S. 403, 415 8 (2002). Claims for denial of access to the courts may arise from the frustration or hindrance of “a 9 litigating opportunity yet to be gained” (forward-looking access claim) or from the loss of a 10 meritorious suit that cannot now be tried (backward-looking claim). Christopher, 536 U.S. at 11 412–15. 12 “[T]he injury requirement is not satisfied by just any type of frustrated legal claim.” 13 Lewis, 518 U.S. at 354. Inmates do not enjoy a constitutionally protected right “to transform 14 themselves into litigating engines capable of filing everything from shareholder derivative actions 15 to slip-and-fall claims.” Id. at 355. Rather, the type of legal claim protected is limited to direct 16 criminal appeals, habeas petitions, and civil rights actions such as those brought under section 17 1983 to vindicate basic constitutional rights. Id. at 354 (quotations and citations omitted). 18 Plaintiff must allege that he was hindered in his efforts to attack his sentence, either directly or 19 collaterally, or to challenge the conditions of his confinement. Id. at 354–55. “Impairment of any 20 other litigating capacity is simply one of the incidental (and perfectly constitutional) 21 consequences of conviction and incarceration.” Id. at 355 (emphasis in original). 22 Moreover, when a prisoner asserts that he was denied access to the courts and seeks a 23 remedy for a lost opportunity to present a legal claim, he must show: (1) the loss of a 24 non-frivolous or arguable underlying claim; (2) the official acts that frustrated the litigation; and 25 (3) a remedy that may be awarded as recompense but that is not otherwise available in a future 26 suit. Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir. 2007) (citing Christopher, 536 U.S. at 27 413−414, overruled on other grounds, Hust v. Phillips, 555 U.S. 1150 (2009)). To properly plead 28 a denial of access to the courts claim, “the complaint should state the underlying claim in 6 1 accordance with Federal Rule of Civil Procedure 8(a), just as if it were being independently 2 pursued, and a like plain statement should describe any remedy available under the access claim 3 and presently unique to it.” Christopher, 536 U.S. at 417–18 (footnote omitted). 4 Plaintiff alleges that the underlying claim he was seeking to bring was one for breach of 5 contract for failure to perform on a settlement agreement from a prior litigation. The nature of 6 this underlying claim, breach of contract, is not one within the protections afforded constitutional 7 protection. Lewis, 518 U.S. at 354–55. Plaintiff alleges the breach of contract case was to 8 enforce a settlement agreement from a prior law suit; it was not for a direct criminal appeals, 9 habeas petitions, or civil rights action.1 Therefore, this type of lawsuit is not within legal claims 10 constitutionally protected. 11 Even so, Plaintiff has not alleged whether the underlying claim was non-frivolous. To 12 state such a claim, the plaintiff must describe this “predicate claim . . . well enough to apply the 13 ‘non-frivolous’ test and to show that the ‘arguable’ nature of the underlying claim is more than 14 hope.” Christopher, 536 U.S. at 416. It is not enough for Plaintiff merely to conclude that the 15 claim was non-frivolous. These allegations are not sufficient to state a claim. Plaintiff was 16 previously advised of the standards for pleading a claim for denial of access to the courts and 17 despite being provided guidance from the Court has been unable to amend the pleadings to state a 18 cognizable claim. Therefore, further leave to amend is not warranted. 19 3. 20 21 Fourteenth Amendment Plaintiff alleges religious discrimination because he cannot use his real name on an in forma pauperis form to be processed through the Trust Office. The Equal Protection Clause of the Fourteenth Amendment affords a prisoner “a 22 23 reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow 24 prisoners who adhere to conventional religious precepts.” Shakur v. Schriro, 514 F.3d 878, 891 25 1 26 27 28 Plaintiff also states that the underlying breach of contract action alleged deliberate indifference. Throughout the amended complaint, however, Plaintiff’s allegations of the underlying action refer to a state law action for Breach of Contract for California Department of Corrections and Rehabilitation’s failure to perform on a settlement. (ECF No. 11, p. 14 “Plaintiff attempted to File a Breach of Contract unlimited state Civil case . . .”); p. 17 (“effectively stopped Plaintiff from filing a state Unlimited Suit for Breach of Contract in Sacramento Superior Court.”) Plaintiff was advised of the standards for an access to courts claim and that he had to allege facts of the underlying claim and not conclusory allegations, and has failed to allege facts to support such a claim. 7 1 (9th Cir. 2008) (quoting Cruz v. Beto, 405 U.S. 319, 322 (1972)). However, prisons “are not 2 required to provide identical accommodations to inmates of every religious persuasion.” Rouser 3 v. White, 630 F. Supp.2d 1165, 1200 (E.D. Cal. 2009) (citing Cruz, 405 U.S. at 322 n.2). To 4 make an Equal Protection claim, an inmate must show that the prison treated him differently from 5 a similarly situated class, raising an inference of discriminatory purpose. Shakur, 514 F.3d at 6 891; Rupe v. Cate, 688 F. Supp. 2d 1035, 1049 (E.D. Cal. 2010). In prison, an inmate’s Equal 7 Protection claim only succeeds where the prison’s disparate treatment was not “reasonably related 8 to legitimate penological interests.” Shakur, 514 F.3d at 891; see also Rupe, 688 F. Supp. 2d at 9 1049. Allegations of disparate treatment, however, cannot be merely conclusory; they must have 10 11 some specificity and factual support. See Rouser, 630 F. Supp. 2d at 1200. Plaintiff has failed to allege any facts showing he was intentionally treated differently 12 from similarly situated inmates or that the denial of his in forma pauperis form was not 13 reasonably related to legitimate penological interests. Indeed, Plaintiff has alleged that such 14 forms, with his real name, have been processed through the Trust Office. Accordingly, the 15 undersigned will recommend dismissal of Plaintiff’s Fourteenth Amendment claim. 16 17 4. Free Exercise of Religion Plaintiff alleges a constitutional violation occurred because he was required to use his 18 commitment name first on the form, followed by his religious (real) name. Plaintiff contends he 19 should be able to put his religious name first on the form, followed by his commitment name. 20 To the extent Plaintiff is alleging interference with free exercise of religion, Plaintiff fails 21 to state a claim. The second religion clause—the Free Exercise Clause—“requires government 22 respect for, and noninterference with, [ ] religious beliefs and practices . . . .” Cutter v. 23 Wilkinson, 544 U.S. 709, 719 (2005). To state a claim under the Free Exercise Clause, an inmate 24 must plausibly allege that a prison official’s actions (a) “substantially burden[ed]” the inmate’s 25 exercise of a sincerely-held religious belief; and (b) did so in an unreasonable manner—i.e., the 26 official’s actions were not “rationally related to legitimate penological interests.” See O’Lone v. 27 Estate of Shabazz, 482 U.S. 342, 348–50 (1987); Jones v. Williams, 791 F.3d 1023, 1031, 1033 28 (9th Cir. 2015) (citation omitted); Shakur, 514 F.3d at 884-85 (citations omitted). “[G]overnment 8 1 action places a substantial burden on an individual’s right to free exercise of religion when it 2 tends to coerce the individual to forego [his or] her sincerely held religious beliefs or to engage in 3 conduct that violates those beliefs.” Jones, 791 F.3d at 1031–33 (a “substantial burden” must be 4 “more than an inconvenience on religious exercise”) (citations omitted). 5 Plaintiff cannot allege any facts that officials acted in an unreasonable manner in 6 burdening his religious practice, because “allowing an inmate to use both his religious and 7 committed names ‘is a reasonable middle ground between absolute recognition of the plaintiff’s 8 [religious name] and the prison interests of order, security, and administrative efficiency.’” See 9 Malik v. Brown, 16 F.3d 330, 334 (9th Cir. 1994); accord Furnace v. Gipson, No. 10 1:14-CV-00814-LJO, 2015 WL 269230, at *4 (E.D. Cal. Jan. 21, 2015) (Plaintiff, however, is 11 mistaken that he has a “clearly established right” under Ninth Circuit law “to use his religious 12 name and booking number H–33245,” without his committed name). Plaintiff does not allege 13 how the practice of his religion has been burdened by the requirement that he use his commitment 14 name and his religious name, in a specific sequence, in prison communications. Nor is it possible 15 he could make any such cognizable claim. Prison officials are allowed to require the use of a 16 commitment name on mail correspondence. Malik, 16 F.3d at 334. As prison officials are 17 permitted to require the use of Plaintiff’s commitment name, requiring Plaintiff to use his 18 commitment name and his religious name, in a particular sequence on a form, is not a 19 constitutional violation. Plaintiff cannot allege a constitutional violation because use of his 20 commitment name along with this religious name is a reasonable burden on his religion. 21 22 5. Inmate Appeals Plaintiff complains about the processing and denials of his inmate appeals by Defendants. 23 However, Plaintiff cannot pursue any claims against prison staff based solely on the processing 24 and review of his inmate appeals. 25 The existence of an inmate appeals process does not create a protected liberty interest 26 upon which Plaintiff may base a claim that he was denied a particular result or that the appeals 27 process was deficient. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (Prisoners do not 28 have a “separate constitutional entitlement to a specific prison grievance procedure.”) (citation 9 1 omitted), cert. denied, 541 U.S. 1063 (2004); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). 2 To state a claim under section 1983, Plaintiff must demonstrate personal involvement in the 3 underlying violation of his rights, Iqbal, 556 U.S. at 677; Jones, 297 F.3d 930, 934 (9th Cir. 4 2002), and liability may not be based merely on Plaintiff’s dissatisfaction with the administrative 5 process or a decision on an appeal, Ramirez, 334 F.3d at 860; Mann, 855 F.2d at 640. Plaintiff alleges that Defendant Voong refused to process Plaintiff’s inmate grievance at 6 7 the Third Level. Plaintiff alleges Defendant Sexton is the Associate Warden and Defendant 8 Singh is the business manager, who both upheld the Amended Second Level Response. A prison 9 official’s denial of a grievance does not itself violate the constitution. Vasquez is Chief Deputy 10 Warden and reviewed the appeal at the Second Level and concurred with the first level. Evans v. 11 Skolnik, 637 Fed. Appx. 285, 288 (9th Cir. 2015), cert. dism’d, 136 S. Ct. 2390 (2016). Thus, the 12 denial, rejection, or cancellation of a grievance does not constitute a due process violation. See, 13 e.g., Wright v. Shannon, No. 1:05-cv-001485-LJO-YNP PC, 2010 WL 445203, at *5 (E.D. Cal. 14 Feb. 2, 2010) (plaintiff’s allegations that prison officials denied or ignored his inmate appeals 15 failed to state a cognizable claim under the First Amendment); Towner v. Knowles, No. CIV S- 16 08-2823 LKK EFB P, 2009 WL 4281999 at *2 (E.D. Cal. Nov. 20, 2009) (plaintiff’s allegations 17 that prison officials screened out his inmate appeals without any basis failed to indicate a 18 deprivation of federal rights); Williams v. Cate, No. 1:09-cv-00468-OWW-YNP PC, 2009 WL 19 3789597, at *6 (E.D. Cal. Nov. 10, 2009) (“Plaintiff has no protected liberty interest in the 20 vindication of his administrative claims.”). Denial or refusal to process a prison grievance is not 21 a constitutional violation. Accordingly, Plaintiff cannot state a claim against Defendants Singh, 22 Vasquez, Sexton or Voong for their decisions related to the prison grievance. Further, because 23 Defendant Gear’s action was not a constitutional violation, any conduct by Singh, Vasquez, 24 Sexton or Voong upholding Gear’s action is not a constitutional violation. The amended 25 complaint is predicated solely upon such Defendants’ alleged improper handling of Plaintiff’s 26 inmate grievances and/or appeals—which is insufficient to state a viable Section 1983 claim— 27 leave to amend should be denied. 28 /// 10 1 III. Conclusion and Recommendation 2 Plaintiff was previously notified of the applicable legal standards and the deficiencies in 3 his pleading, and despite guidance from the Court, Plaintiff’s first amended complaint fails to 4 correct the identified deficiencies. In his first amended complaint, Plaintiff bases liability on 5 conduct of Defendant Gear which does not violate the Constitution. Based on the nature of the 6 deficiencies at issue, the Court finds that further leave to amend is not warranted. Lopez v. 7 Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir. 8 1987). 9 10 11 12 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a District Judge to this action. Furthermore, for the reasons stated above, IT IS HEREBY RECOMMENDED that this action be dismissed for Plaintiff’s failure to state a claim for which relief may be granted. 13 These Findings and Recommendations will be submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 15 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 16 file written objections with the Court. The document should be captioned “Objections to 17 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file 18 objections within the specified time may result in the waiver of the “right to challenge the 19 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 20 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 22 23 24 IT IS SO ORDERED. Dated: /s/ Barbara May 15, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25 26 27 28 11
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