(PC) Buckley, Jr. v. Johnson et al, No. 1:2017cv00102 - Document 16 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS recommending that Regarding Cognizable Claims and Dismissal of Certain Claims and Defendants re 14 First Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Barbara A. McAuliffe on 5/4/2018. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)
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(PC) Buckley, Jr. v. Johnson et al Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RODNEY C. BUCKLEY, JR., Case No. 1:17-cv-00102-LJO-BAM (PC) 12 FINDINGS AND RECOMMENDATIONS REGARDING COGNIZABLE CLAIMS AND DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS 13 14 Plaintiff, v. B. JOHNSON, et al., 15 Defendants. 16 (ECF No. 14) Fourteen (14) DAY DEADLINE 17 18 Plaintiff Rodney C. Buckley, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and in 19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s first amended 20 complaint (FAC), filed on November 27, 2017, is currently before the Court for screening. (ECF 21 No. 14.) 22 I. Screening Requirement 23 The Court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 25 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 26 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief 27 from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 28 1915(e)(2)(B)(ii). 1 Dockets.Justia.com 1 A complaint must contain “a short and plain statement of the claim showing that the pleader 2 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 3 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 4 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)). While a 6 plaintiff’s allegations are taken as true, courts “are not required to indulge unwarranted 7 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 8 marks and citation omitted). 9 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 10 liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 11 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially 12 plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each 13 named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 14 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 15 The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with 16 liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 17 (quotation marks omitted); Moss, 572 F.3d at 969. 18 II. 19 Plaintiff is currently housed at the California State Prison, Solano in Vacaville, CA. The Plaintiff’s Allegations 20 events at issue in this complaint took place outside of Cell 133 at Corcoran State Prison in 21 Corcoran, CA while Plaintiff was housed in 3A05-116 on January 22 and 23, 2013. Plaintiff names 22 the following defendants in this action: B. Johnson, Correctional Officer; R. Zamora, Correctional 23 Officer; A. Rocha, Correctional Officer; Guiterrez, Correctional Officer; J. Gonzales, Correctional 24 Lieutenant; John Doe Correctional Officer. 25 Plaintiff’s allegations are as follows: Plaintiff arrived at Corcoran on January 16, 2013. 26 Two different inmates discussed with Plaintiff whether they should be housed together. Plaintiff 27 discussed with inmate Williams whether to cell together, but determined that they were 28 incompatible. Plaintiff told Defendant Johnson that Plaintiff could not house with inmate Williams 2 1 as they are incompatible. Defendant Johnson told Plaintiff that he would have to house with inmate 2 Williams. Plaintiff said he should be housed with a Muslim inmate. On or about January 22, 2013, 3 when Plaintiff came back from the shower, Defendant Johnson told Plaintiff to grab his property 4 from the cell and he was being moved. Plaintiff did so. They walked towards inmate Williams’ cell 5 (number 133), other officers joined. When Plaintiff realized this, he stopped slightly in front of the 6 cell towards the right. Plaitniff said that he was not compatible with Williams and then he was 7 surrounded by correctional staff. He asked what they wanted him to do. They ordered him to put 8 his hands behind his back and Plaintiff did. 9 Defendant Johnson and other officers (Plaintiff cannot determine who) grabbed Plaintiff by 10 his hair and twisting Plaintiff’s body and arms vehemently attempting to slam Plaintiff on the 11 ground by his hair. Plaintiff stumbled and decided to lay flat on the ground so as the officers did 12 not feel threatened. He lay on the ground with his arms, hands and legs open. An officer placed a 13 knee in Plaintiff’s back and grabbed his arms and legs twisting them and picked him up, carrying 14 him to cell 133. In attempting to readjust their hold of Plaintiff, Plaintiff’s leg got caught outside 15 the cell door and Johnson forced Plaintiff into the cell (133) making Plaintiff’s leg fold in an 16 irregular fashion, throwing Plaintiff to the ground. Johnson told Plaintiff that Plaintiff should have 17 just gone into the cell. Plaintiff was in extreme pain, hopped to the door as Johnson closed it, and 18 said “I’m going to sue your dumb ass.” Plaintiff called for medical help but no one came. Another 19 inmate (Daniels) came to him and gave Plaintiff a medical request form which Plaintiff filled out. 20 Inmate Williams returned and complained about Plaintiff being in his cell. 21 Later, at about noon, Defendant Johnson cuffed up Plaintiff and took him out of the cell in 22 hand cuffs and was taken to the program office. Sgt. Gonzales was on the escort of Plaintiff with 23 Johnson and kept threatening and harassing Plaintiff about not going into the cell with Williams. 24 Plaintiff was put into a holding cage and had to stand for a while. Later Gonzales asked Plaintiff if 25 Plaintiff had any safety concerns and Plaintiff was concerned that Plaintiff would be sent to 26 sensitive needs yard. Gonzales said that Plaintiff would be sent to Ad-seg, Plaintiff agreed to be 27 housed with Williams. Plaintiff asked to see a nurse because of severe pain in his left leg and good. 28 Gonzales agreed. Plaintiff had to stand in the cage and he called to officers to help him and “after 3 1 several people” the nurse came at 1:25 p.m. When Plaintiff told the nurse how he got his injuries, 2 due to staff forcing Plaintiff into a cell, the nurse informed higher authorities and documented staff 3 misconduct. Defendant Gonzales said that reports of staff misconduct are taken very seriously. 4 Plaintiff begged not to be put in ad-seg, but Gonzales said that because of a complaint of staff 5 misconduct, Plaintiff had to go to Ad-seg and was taken there about midnight. 6 The next morning, staff came to Plaintiff’s cell and told him that they were there on behalf 7 of Defendant Gonzales. They said the Gonzales wanted Plaintiff to drop the staff misconduct 8 complaint Plaintiff could return to the yard. Plaintiff said he could not drop the complaint. They 9 said that if he did not, he would be issued a CDC-115. Plaintiff explained why he could not drop 10 the complaint. Later that day, plaintiff was interviewed and recorded about how he got his injuries. 11 Plaintiff also received a CDC-115 from Scaife. Plaintiff gave a list of cells and questions to 12 ask witnesses and staff and she said “this is too much.” When Scaife returned from her 13 investigation, she did not do what he had asked for the investigation. 14 Plaintiff was brought before the committee in Ad-seg, including Associate Warden Jennings, 15 after about 2-3 weeks. Plaintiff explained what happened to him. Soon, Plaintiff was released from 16 Ad-seg to the facility A yard. 17 Plaintiff’s first claim is for excessive force against Johnson and Zamora (who was the other 18 officer who assisted Johnson) when they snatched Plaintiff’s hair, twisted his arms and legs and 19 knee in Plaintiff’s back and forced him into the cell harming his ankle and leg. Plaintiff suffered 20 emotional distress from the incident and injury. 21 Plaintiff’s second claim is for failure to protect by defendant Guiterrez who was at the 22 podium, Defendant Rocha who was in the control booth, and Defendant John Doe, who was in the 23 floor staff’s office, and saw the assault and refused to intervene. 24 Plaintiff alleges retaliation by Sgt. Gonzales, Johnson, Zamora and Rocha for Plaintiff 25 stating a complaint of staff misconduct. Plaintiff agreed with Sgt. Gonzalez to go cell with inmate 26 Williams so that Plaintiff did not have to go into Ad-seg. Defendant Johnson, Zamora and Rocha 27 violated Plaintiff’s first amendment right against retaliation when they fabricated/falsified a CDC28 115 against Plaintiff for not dropping the misconduct complaint. 4 1 Plaintiff seeks compensatory and punitive damages, attorney fees and costs. 2 III. 3 4 Discussion A. Eighth Amendment – Excessive Force The Eighth Amendment protects prisoners from inhumane methods of punishment and from 5 inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2005). 6 Prison officials must provide prisoners with medical care and personal safety and must take 7 reasonable measures to guarantee the safety of the inmates. Farmer v. Brennan, 511 U.S. 825, 8328 33, 114 S. Ct. at 1976 (1994) (internal citations and quotations omitted). 9 The Eighth Amendment “embodies broad and idealistic concepts of dignity, civilized 10 standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). Conditions of 11 confinement may, however, be harsh and restrictive. See Rhodes v. Chapman, 452 U.S. 337, 347 12 (1981). Nonetheless, prison officials must provide prisoners with “food, clothing, shelter, sanitation, 13 medical care, and personal safety.” Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986). A 14 prison official violates the Eighth Amendment only when two requirements are met: (1) objectively, 15 the official’s act or omission must be so serious such that it results in the denial of the minimal 16 civilized measure of life’s necessities; and (2) subjectively, the prison official must have acted 17 unnecessarily and wantonly for the purpose of inflicting harm. See Farmer, 511 U.S. at 834. 18 Plaintiff has alleged a cognizable claim against Defendant Johnson and Zamora for the 19 incident outside of cell 133 and as Defendant Johnson and Zamora moved Plaintiff into the cell. 20 Plaintiff has failed to allege a cognizable claim against any other defendant for excessive force. 21 22 B. Eighth Amendment – Failure to Protect Prison officials have a duty to take reasonable steps to protect inmates from physical 23 abuse. Id. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.2005). To establish a violation 24 of this duty, the prisoner must establish that prison officials were “deliberately indifferent to a 25 serious threat to the inmate’s safety.” Farmer, 511 U.S at 834. The question under the Eighth 26 Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a 27 sufficiently substantial ‘risk of serious damage to his future health....’ “ Id. at 843 (citing Helling v. 28 McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). 5 1 The deliberate indifference standard involves both an objective and a subjective prong. First, 2 the alleged deprivation must be, in objective terms, “sufficiently serious.” Id at 834. Second, 3 subjectively, the prison official must “know of and disregard an excessive risk to inmate health or 4 safety.” Id at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir.1995). To prove 5 knowledge of the risk, however, the prisoner may rely on circumstantial evidence; in fact, the very 6 obviousness of the risk may be sufficient to establish knowledge. Farmer, 511 U.S. at 842; Wallis v. 7 Baldwin, 70 F.3d 1074, 1077 (9th Cir.1995). 8 Liberally construing Plaintiff’s allegations, Plaintiff states a cognizable claim for failure to 9 protect against Defendant Guiterrez who was at the podium, Defendant Rocha who was in the 10 control booth, and Defendant John Doe, who was in the floor staff’s office, and saw the assault and 11 refused to intervene. 12 13 C. Due Process Violation – False Charges Plaintiff states that he was denied Due Process by Defendant Gonzales when he lied to have 14 Plaintiff placed in Ad-seg and Johnson, Zamora and Rocha for a false 115. 15 The Due Process Clause of the Fourteenth Amendment protects against the deprivation of 16 liberty without due process of law. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 2393, 17 162 L.Ed.2d 174 (2005). To state a claim for the deprivation of procedural due process, a plaintiff 18 must first identify a liberty interest for which the protection is sought. Id. at 221, 2393. Liberty 19 interests may arise from the Due Process Clause or from state law. Id. The Due Process Clause itself 20 does not confer on inmates a liberty interest in avoiding more adverse conditions of confinement, id. 21 at 221–22 (citations and quotation marks omitted), and under state law, the existence of a liberty 22 interest created by prison regulations is determined by focusing on the nature of the condition of 23 confinement at issue. Id. at 222–23 (citing Sandin v. Conner, 515 U.S. 472, 481–84 (1995)). Liberty 24 interests created by prison regulations are generally limited to freedom from restraint which 25 imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of 26 prison life. Id. at 221 (quoting Sandin, 515 U.S. at 484); Myron v. Terhune, 476 F.3d 716, 718 (9th 27 Cir. 2007). 28 /// 6 1 Plaintiff is informed that he has no constitutionally-guaranteed immunity from being falsely 2 or wrongly accused of conduct that may lead to disciplinary sanctions. See Sprouse v. Babcock, 870 3 F.2d 450, 452 (8th Cir. 1989). Although the Ninth Circuit has not directly addressed this issue in a 4 published opinion, district courts throughout California relying on the case cited above have 5 determined that a prisoner's allegation that prison officials issued a false disciplinary charge against 6 him fails to state a cognizable claim for relief under § 1983. Lipsey v. Guzman, No. 117CV00896 7 AWIEPGPC, 2018 WL 1567813, at *4 (E.D. Cal. Mar. 30, 2018) (collecting cases). 8 With respect to prison disciplinary proceedings, the minimum procedural requirements that 9 must be met are: (1) written notice of the charges; (2) at least 24 hours between the time the 10 prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his 11 defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for 12 taking disciplinary action; (4) the right of the prisoner to call witnesses in his defense, when 13 permitting him to do so would not be unduly hazardous to institutional safety or correctional goals; 14 and (5) legal assistance to the prisoner where the prisoner is illiterate or the issues presented are 15 legally complex. Wolff v. McDonnel, 418 U.S. 539, 563-71 (1974). As long as the five 16 minimum Wolff requirements are met, due process has been satisfied. Walker v. Sumner, 14 F.3d 17 1415, 1420 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). 18 Plaintiff cannot state any claim that due process was violated by any officials who made 19 false charges against him. “Specifically, the fact that a prisoner may have been innocent of 20 disciplinary charges brought against him and incorrectly held in administrative segregation does not 21 raise a due process issue. The Constitution demands due process, not error-free decision22 making.” Jones v. Woodward, 2015 WL 1014257, *2 (E.D. Cal. 2015). 23 D. First Amendment - Retaliation 24 Plaintiff alleges that he was placed in Ad-seg. for making a staff misconduct charge. 25 Allegations of retaliation against a prisoner’s First Amendment rights to speech or to 26 petition the government may support a section 1983 claim. Silva v. Di Vittorio, 658 F.3d 1090, 27 1104 (9th Cir. 2011); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham 28 v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). 7 1 “Within the prison context, a viable claim of First Amendment retaliation entails five basic 2 elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because 3 of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate's exercise of his 4 First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional 5 goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 6 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658 F.3d at 1104; Brodheim v. Cry, 584 F.3d 1262, 1269 7 (9th Cir. 2009). 8 Here, Plaintiff states a cognizable claim for retaliation against Defendant Gonzales. Plaintiff 9 alleges he was placed in Ad-seg after he make a staff misconduct complaint and even after he said 10 he would cell-up with Williams. While the elements of whether this action “chilled” Plaintiff and 11 whether no legitimate correctional goal was advanced by placing Plaintiff in Ad-seg are disputable, 12 construing the complaint liberally, Plaintiff has stated claim. The correct inquiry regarding 13 “chilling” is to determine whether an official's acts would chill or silence a person of ordinary 14 firmness from future First Amendment activities. Rhodes, 408 F.3d at 568–69. Plaintiff does not 15 allege that his speech was chilled, but the adverse actions he suffered would chill a person of 16 ordinary firmness. And he alleges he changed his mind about celling up so as to avoid Ad-seg. 17 Thus, liberally construing the complaint, Plaintiff has satisfied the fourth prong. With respect to the 18 fifth prong, a prisoner must affirmatively allege that “the prison authorities' retaliatory action did 19 not advance legitimate goals of the correctional institution or was not tailored narrowly enough to 20 achieve such goals.” Rizzo, 778 F.2d at 532. Plaintiff’s allegation is that he was sent to Ad-seg 21 immediately after alleging staff misconduct. While Defendant may be able to show a legitimate 22 correctional reason for placing Plaintiff in Ad-seg, liberally construing this allegation, Plaintiff 23 states a cognizable claim. 24 25 E. Threats and Harassment Plaintiff alleges that Defendant Gonzales threatened Plaintiff for not going into the cell with 26 Williams. Plaintiff is informed that verbal harassment or abuse alone is not sufficient to state a 27 claim under section 1983, Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987), and threats 28 do not rise to the level of a constitutional violation, Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 8 1 1987). Therefore, Plaintiff fails to state a claim based on verbal harassment or threats. 2 F. While in the Cage – Conditions of Confinement and Medical Indifference 3 Plaintiff alleges he was forced to stand for a few hours in a small holding cell and while 4 there, he called out for medical assistance to treat his injuries. 5 Extreme deprivations are required to make out a conditions of confinement claim, and only 6 those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave 7 to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 8 995, 117 L.Ed.2d 156 (1992) (citations and quotations omitted). In order to state a claim for 9 violation of the Eighth Amendment, the plaintiff must allege facts sufficient to support a claim that 10 prison officials knew of and disregarded a substantial risk of serious harm to the plaintiff. 11 E.g., Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Frost v. 12 Agnos, 152 F.3d 1124, 1128 (9th Cir.1998). 13 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 14 must show ‘deliberate indifference to serious medical needs.’ ” Jett v. Penner, 439 F.3d 1091, 1096 15 (9th Cir.2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 (1976)). The two part test 16 for deliberate indifference requires the plaintiff to show (1) “ ‘a serious medical need’ by 17 demonstrating that ‘failure to treat a prisoner's condition could result in further significant injury or 18 the unnecessary and wanton infliction of pain,’ ” and (2) “the defendant's response to the need was 19 deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 20 (9th Cir.1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th 21 Cir.1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by “a 22 purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused 23 by the indifference.” Id. 24 Plaintiff’s claim does not rise to a constitutional level. Standing in a holding cell for a few 25 hours is not a constitutional violation. Further, Plaintiff has not named which defendant(s) forced 26 him to stand in the isolation cage, nor has he alleged facts showing deliberate indifference, nor has 27 he shown a serious medical need. The medical forms attached to the complaint note “slight” injury 28 and redness to his ankle. 9 1 2 G. Investigation To the extent Plaintiff is dissatisfied with the outcome or adequacy of an investigation by 3 Schiefe, an inadequate investigation is not a basis for a plausible due process claim. See Gomez v. 4 Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (per curiam) (“[W]e can find no instance where the 5 courts have recognized inadequate investigation as sufficient to state a civil rights claim unless there 6 was another recognized constitutional right involved.”); Page v. Stanley, No. CV 11–2255 CAS 7 (SS), 2013 WL 2456798, at *8–9 (C.D. Cal. June 5, 2013) (dismissing Section 1983 claim alleging 8 that officers failed to conduct thorough investigation of plaintiff’s complaints because plaintiff “had 9 no constitutional right to any investigation of his citizen’s complaint, much less a ‘thorough’ 10 investigation or a particular outcome”). 11 12 H. DOE Defendant Plaintiff names John Doe defendant in this action. Unidentified, or “John Doe” defendants, 13 must be named or otherwise identified before service can go forward. “As a general rule, the use of 14 ‘John Doe’ to identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 15 1980). Plaintiff is advised that John Doe defendant cannot be served by the United States Marshal 16 until Plaintiff has identified him as an actual individual and amended his complaint to substitute 17 names for John Doe. For service to be successful, the Marshal must be able to identify and locate 18 defendants. 19 IV. 20 Despite being provided with the relevant pleading and legal standards, Plaintiff has been Conclusion and Order 21 unable to cure the deficiencies of his complaint, and further leave to amend is not warranted. Lopez 22 v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 23 Accordingly, the Court finds that Plaintiff’s first amended complaint states a cognizable 24 claim for (1) excessive force in violation of the Eighth Amendment against Defendants Johnson and 25 Zamora for the incident on or about January 22, 2013, (2) failure to protect in violation of the 26 Eighth Amendment against Defendant Guiterrez who was at the podium, Defendant Rocha who was 27 in the control booth, and Defendant John Doe, who as in the floor staff’s office, and saw the assault 28 and refused to intervene in the incident on or about January 22, 2013, and (3) a claim for retaliation 10 1 in violation of the First Amendment against Defendant Gonzales for placing Plaintiff in Ad-seg on 2 or about January 23, 2013, but fails to state any other cognizable claims. 3 4 Based on the foregoing, it is HEREBY RECOMMENDED that: 1. This action proceed on Plaintiff’s first amended complaint, filed November 27, 2017, (ECF 5 No. 14), for (1) excessive force in violation of the Eighth Amendment against Defendants B. 6 Johnson, Correctional Officer, and R. Zamora, Correctional Officer, for the incident on or 7 about January 22, 2013, (2) failure to protect in violation of the Eighth Amendment against 8 Defendant Guiterrez, Correctional Officer, who was at the podium, Defendant A. Rocha 9 who was in the control booth, and Defendant John Doe, who as in the floor staff’s office, 10 and saw the assault and refused to intervene in the incident on or about January 22, 2013, 11 and (3) a claim for retaliation in violation of the First Amendment against Defendant J. 12 Gonzales, Correction Lieutenant, for placing Plaintiff in Ad-seg on or about January 23, 13 2013; and 14 15 2. All other claims and Defendants be dismissed based on Plaintiff’s failure to state claims upon which relief may be granted. 16 17 These Findings and Recommendations will be submitted to the United States District Judge 18 assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being 19 served with these Findings and Recommendations, Plaintiff may file written objections with the 20 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 21 Recommendations.” Plaintiff is advised that the failure to file objections within the specified time 22 may result in the waiver of the “right to challenge the magistrate’s factual findings” on 23 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 24 F.2d 1391, 1394 (9th Cir. 1991)). 25 26 IT IS SO ORDERED. 27 28 Dated: /s/ Barbara May 4, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 11
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