(PC) Church v. Naftzger, No. 1:2017cv00596 - Document 19 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS for Plaintiff to Proceed on Due Process Claim Against Naftzger in the Original Complaint 1 , All Other Claims and Defendants be Dismissed and First Amended Complaint 13 be Stricken from the Record; ORDER Directing the Clerk of the Court to Assign a District Judge to this Action, signed by Magistrate Judge Jennifer L. Thurston on 3/29/18. This case has been assigned to District Judge Anthony W. Ishii and Magistrate Judge Jennifer L. Thurston. The New Case No. is: 1:18-cv-00596-AWI-JLT. Referred to Judge Ishii. Objections to F&R Due Within 21-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 JACK CHURCH, 12 13 14 15 Case No. 1:17-cv-00596-JLT (PC) Plaintiff, v. J. NAFTZGER, et al., Defendants. FINDINGS AND RECOMMENDATIONS FOR PLAINTIFF TO PROCEED ON DUE PROCESS CLAIM AGAINST NAFTZGER IN THE ORIGINAL COMPLAINT, ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED AND FIRST AMENDED COMPLAINT BE STRICKEN FROM THE RECORD 16 (Docs. 1, 9, 13) 17 ORDER DIRECTING THE CLERK OF THE COURT TO ASSIGN A DISTRICT JUDGE TO THIS ACTION 18 19 20 On October 19, 2017, the Court issued the first screening order and found that Plaintiff 21 stated a cognizable due process claim against Officer J. Naftzger in the Complaint. (Docs. 1, 10.) 22 That order noted that Plaintiff might be able to correct the deficiencies in his pleading on other 23 claims and gave Plaintiff the choice to either file a first amended complaint correcting 24 deficiencies noted on his other claims, or to advise the Court if he desired to proceed on his due 25 process claim against C/O Naftzger. 26 In response, Plaintiff filed the First Amended Complaint. (Doc. 13.) However, instead of 27 attempting to cure the deficiencies noted in the first screening order, Plaintiff identifies C/O 28 Naftzger as the only defendant and states that he wants the FAC to supplement his original 1 1 Complaint to include a claim against Naftzger for forcing him to work despite knowing that 2 Plaintiff was injured. (Id., p. 3.) For the reasons discussed below, Plaintiff’s new claim against 3 Naftzger is not cognizable. Since Plaintiff chose to attempt to add an uncognizable claim, rather 4 than attempt to correct the deficiencies previously identified, the Court presumes that he is unable 5 to cure the deficiencies. Thus, the Court recommends that he should be permitted to proceed on 6 his due process claim against Naftzger as stated in the original complaint, that all other claims and 7 defendants should be dismissed and the First Amended Complaint should be stricken. 8 A. Screening Requirement 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). The 11 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 12 frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary 13 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. 14 § 1915(e)(2)(B)(i)-(iii). 15 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or 16 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. 17 Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of 18 substantive rights, but merely provides a method for vindicating federal rights conferred 19 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). To state a claim under § 1983, a 20 plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of 21 the United States was violated and (2) that the alleged violation was committed by a person acting 22 under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda 23 Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987). 24 25 B. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 26 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 27 exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 28 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain 2 1 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a). 2 “Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 3 the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. 4 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 5 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 6 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 7 Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is 8 plausible on its face.’” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual 9 allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S. 10 11 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft, 12 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 13 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 14 However, “the liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” 15 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights 16 complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. 17 Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 18 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, 19 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 20 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, 21 and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 22 plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969. 23 2. Linkage Requirement 24 Under the Civil Rights Act (42 U.S.C. ' 1983), the complaint must allege an actual 25 connection or link between the actions of the defendants and the deprivation alleged to have been 26 suffered by Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. 27 Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 28 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 3 1 act, participates in another’s affirmative acts or omits to perform an act which he is legally 2 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 3 F.2d 740, 743 (9th Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff 4 must link each named defendant with some affirmative act or omission that demonstrates a 5 violation of Plaintiff=s federal rights. Plaintiff’s pleading must put each Defendant on notice of 6 Plaintiff’s claims against him or her. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004). 7 FINDINGS 8 A. 9 Plaintiff alleges that when he was housed at Pleasant Valley State Prison (“PVSP”), J. 10 Naftzger filed a false disciplinary chrono against Plaintiff which resulted in Plaintiff’s loss of 11 property, day room activities, use of the telephone, and credits which caused Plaintiff to suffer 12 emotional distress, personal injury, and depression. Plaintiff alleges that he filed an inmate appeal 13 which Warden Scott Frauenheim reviewed but denied. 14 The original complaint (Doc. 1) Plaintiff’s allegations in the original complaint state a cognizable due process claim 15 against Naftzger, upon which he should be allowed to proceed for nominal damages. However, 16 as discussed below, Plaintiff fails to state a cognizable claim against Warden Frauenheim and 17 fails to state factual allegations to show that he suffered more than mental or emotional injuries as 18 a result of either defendants’ actions. Absent physical injury, he cannot obtain damages for 19 emotion damages. 20 21 1. Plaintiff’s claim against Naftzger Due process requires disciplinary decisions to be supported by “some evidence.” 22 Superintendent v. Hill, 472 U.S. 445, 455 (1985); see also Touissaint v. McCarthy, 926 F.2d 800, 23 802-03 (9th Cir. 1991); Bostic v. Carlson, 884 F.2d 1267, 1269-70 (9th Cir. 1989); Jancsek, III v. 24 Oregon Bd. Of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987); Cato v. Rushen, 824 F.2d 703, 705 25 (9th Cir. 1987); see Burnsworth v. Gunderson, 179 F.3d 771, 774-74 (9th Cir. 1999) (where there 26 is no evidence of guilt may be unnecessary to demonstrate existence of liberty interest.) The 27 standard is not particularly stringent and the relevant inquiry is merely whether “there is any 28 evidence in the record that could support the conclusion reached . . . .” Id. at 455-56. However, 4 1 while the due process requirements for a prison disciplinary hearing are in many respects less 2 demanding than those for criminal prosecution, the “some evidence” standard need not be met 3 where an original rules violation report is false. Hines v. Gomez, 108 F.3d 265, 268-69 (9th Cir. 4 1997). Thus, Plaintiff’s allegations that Officer Naftzger filed a false disciplinary chrono against 5 him state a cognizable due process claim. 6 Further, Plaintiff has successfully invalidated the guilty finding against him under 7 Naftzger’s false disciplinary chrono. (Doc. 1, pp. 11-13.) Thus, this claim is not barred by Heck 8 v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641, 643 (1997) (which 9 extended Heck rule to § 1983 claims that, if successful, would imply the invalidity of deprivations 10 11 12 of good-time credits provided for by prison disciplinary proceedings). 2. Plaintiff’s Claim Against Warden Frauenheim “[A] plaintiff may state a claim against a supervisor for deliberate indifference based upon 13 the supervisor’s knowledge of and acquiescence in unconstitutional conduct by his or her 14 subordinates.” Starr v. Baca, 652 F.3d 1202, 1207 (2011). Such knowledge and acquiescence 15 may be shown via the inmate appeals process where the supervisor was involved in reviewing 16 Plaintiff’s applicable inmate appeal and failed to take corrective action which allowed the 17 violation to continue. A defendant may be held liable as a supervisor under § 1983 “if there 18 exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a 19 sufficient causal connection between the supervisor’s wrongful conduct and the constitutional 20 violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). “[A] plaintiff must show the 21 supervisor breached a duty to plaintiff which was the proximate cause of the injury. The law 22 clearly allows actions against supervisors under section 1983 as long as a sufficient causal 23 connection is present and the plaintiff was deprived under color of law of a federally secured 24 right.” Redman v. County of San Diego, 942 F.2d 1435, 1447 (9th Cir. 1991)(internal quotation 25 marks omitted)(abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994). 26 “The requisite causal connection can be established . . . by setting in motion a series of 27 acts by others,” id. (alteration in original; internal quotation marks omitted), or by “knowingly 28 refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably 5 1 should have known would cause others to inflict a constitutional injury,” Dubner v. City & Cnty. 2 of San Francisco, 266 F.3d 959, 968 (9th Cir.2001). “A supervisor can be liable in his individual 3 capacity for his own culpable action or inaction in the training, supervision, or control of his 4 subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a 5 reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d 6 1087, 1093 (9th Cir.1998) (internal alteration and quotation marks omitted). 7 Though Plaintiff alleges that Warden Frauenheim denied his inmate appeal in which 8 Plaintiff sought to overturn the disciplinary finding, Plaintiff does not state any allegations on 9 which to find that Warden Frauenheim knew or should have known that Naftzger’s chrono was 10 false. Thus, Plaintiff’s allegations do not state a cognizable claim against Warden Frauenheim. 11 Since Plaintiff elected not to amend his allegations on this claim, Warden Frauenheim and this 12 claim should be dismissed with prejudice. 13 14 15 3. Plaintiff’s Requested Damages a. Mental or Emotional Injuries Section 1997e(e) provides: “No Federal civil action may be brought by a prisoner 16 confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered 17 while in custody without a prior showing of physical injury or the commission of a sexual act (as 18 defined in section 2246 of title 18, United States Code).” 42 U.S.C. § 1997e(e). Thus, Plaintiff 19 may not pursue damages for mental or emotional injuries as he alleges neither physical injury, nor 20 sexual assault; nor do any of his factual allegations even remotely imply that he sustained any 21 such injuries by Defendant’s actions. 22 23 b. Compensatory Damages “[T]he basic purpose of a ' 1983 damages award should be to compensate persons for 24 injuries caused by the deprivation of constitutional rights.” Carey v. Piphus, 435 U.S. 247, 254 25 (1978). For this reason, no compensatory damages may be awarded in a ' 1983 suit absent proof 26 of actual injury. Id., at 264; accord, Memphis Community School Dist. v. Stachura, 477 U.S. 299, 27 307 (1986). However, “the denial of procedural due process should be actionable for nominal 28 damages without proof of actual injury.” Carey, 435 U.S. at 266. Nominal damage awards for 6 1 the “absolute” right to procedural due process “recognizes the importance to organized society 2 that [this] righ[t] be scrupulously observed” while “remain[ing] true to the principle that 3 substantial damages should be awarded only to compensate actual injury.” Id. Thus, Plaintiff 4 may pursue and receive an award of nominal damages for the violation of his right to procedural 5 due process, but should not be allowed to pursue compensatory damages since he alleges no 6 actual injury. Farrar v. Hobby, 506 U.S. 103, 112 (1992). 7 B. 8 In the First Amended Complaint, Plaintiff names Naftzger as the only defendant and 9 The First Amended Complaint (Doc. 13) alleges that he informed Naftzger that he was unable to perform his work assignment as a kitchen 10 worker. (Doc. 13, p. 3, citing Exh. 1.) Plaintiff alleges that he had a “medical lay-in” excusing 11 him from work. (Id., citing Exh. 2.) Plaintiff alleges that he continued to inform Naftzger “of the 12 problem,” but that while Naftzger acknowledged it, he refused to allow Plaintiff any relief. (Id., 13 citing Exh. 3.) Plaintiff alleges that he suffered severe injury to his hand when Naftzger forced 14 him to work despite Plaintiff’s inability to do so. (Id., at pp. 3-4.) Plaintiff seeks to add this 15 claim to his due process claim against Naftzger and one million dollars in compensatory and 16 punitive damages. (Id., at p. 5.) 17 1. 18 Deliberate Indifference “The treatment a prisoner receives in prison and the conditions under which he is confined 19 are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832, 20 (1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993). To establish a violation of the 21 Eighth Amendment, the prisoner must “show that the officials acted with deliberate indifference 22 to threat of serious harm or injury to an inmate.” Labatad v. Corrections Corp. of America, 714 23 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th 24 Cir. 2002). 25 The deliberate indifference standard involves both an objective and a subjective prong. 26 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer at 834. 27 Indications of a serious medical need “include the existence of an injury that a reasonable doctor 28 or patient would find important and worthy of comment or treatment; the presence of a medical 7 1 condition that significantly affects an individual’s daily activities; or the existence of chronic and 2 substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation and internal 3 quotation marks omitted); accord Wilhelm, 680 F.3d at 1122; Lopez v. Smith, 203 F.3d 1122, 4 1131 (9th Cir. 2000). Second, subjectively, the prison official must “know of and disregard an excessive risk to 5 6 inmate health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 7 1995). A prison official must “be aware of facts from which the inference could be drawn that a 8 substantial risk of serious harm exists, and . . . must also draw the inference.” Farmer, 511 U.S. 9 at 837. Liability may follow only if a prison official “knows that inmates face a substantial risk 10 of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 11 847. 12 The question under the Eighth Amendment is whether prison officials, acting with 13 deliberate indifference, exposed a prisoner to a sufficiently substantial “risk of serious damage to 14 his future health . . . .” Farmer, at 843 (citing Helling, 509 U.S. at 35). The Supreme Court has 15 explained that “deliberate indifference entails something more than mere negligence . . . [but] 16 something less than acts or omissions for the very purpose of causing harm or with the knowledge 17 that harm will result.” Id., at 835. The Court defined this “deliberate indifference” standard as 18 equal to “recklessness,” in which “a person disregards a risk of harm of which he is aware.” Id., 19 at 836-37. 20 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 21 (9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from 22 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 23 ‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison 24 official should have been aware of the risk, but was not, then the official has not violated the 25 Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson, 290 F.3d at 1188). 26 There are a number of Ninth Circuit cases finding liability under the Eighth Amendment 27 when prison officials act contrary to physicians’ orders. See e.g. Estelle v. Gamble, 429 U.S. at 28 104-05 (liability for interfering “with treatment once prescribed”); Hamilton v. Endell, 981 F.2d 8 1 1062, 1066 (9th Cir. 1992) (reversing summary judgment where prison officials forced prisoner 2 to endure a plane flight that resulted in ear injury, in direct contravention of a treating physician’s 3 previous orders); Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (per curium) 4 (reversing summary judgment where medical staff knew that pretrial detainee had head injury, 5 but prescribed contraindicated medications, disregarding evidence of complications to which they 6 had been specifically alerted by private treating physician); Tolbert v. Eyman, 434 F.2d 625 (9th 7 Cir. 1970) (finding cognizable claim for deliberate indifference where warden refused to 8 authorize prisoner’s receipt of medicine that had been previously prescribed by a physician). 9 Likewise the Courts of other federal Circuits have also found deliberate indifference 10 where prison officials ignore a previous physician’s treatment plan. See e.g. White v. Napoleon, 11 897 F.2d 103 (3rd Cir. 1990) (finding cognizable claim for deliberate indifference where prison 12 officials ignored private hospital’s treatment orders and refused inmate’s access to prescribed 13 medication); Gill v. Mooney, 824 F.2d 192 (2nd Cir. 1987) (finding cognizable claim where 14 prison officials refused to permit plaintiff to participate in exercise program prescribed by 15 doctor); Eades v. Thompson, 823 F.2d 1055 (7th Cir. 1987) (finding cognizable claim where 16 prisoner alleged that prison officials made him travel and carry a heavy box, causing a surgical 17 incision to gape open, in violation of prior medical orders); Martinez v. Mancusi, 443 F.2d 921 18 (2nd Cir. 1970), cert. denied 401 U.S. 983, cited with approval by Estelle, 429 U.S. at 105 n.10 19 (finding deliberate indifference where prison staff forced post-surgical prisoner-patient to walk, 20 ignoring warnings from hospital personnel that inmate should not be moved). 21 Plaintiff’s exhibits illuminate a few glaring deficiencies in his claim that Naftzger required 22 him to work when he had a medical lay-in excusing it. Plaintiff’s first exhibit shows that, on 23 March 21, 2014, Plaintiff submitted a request for interview for a day off from working due to 24 exacerbation of a previous work injury. (Doc. 13, Exh. 1, p. 7.) However, exhibit 2, which 25 Plaintiff refers to as proof that Naftzger wrongly forced him to work, is a medical lay-in confining 26 Plaintiff to bed for meals and medications from April 6, 2015 - April 20, 2015. (Id., Exh. 2, p. 9.) 27 Naftzger would not have been deliberately indifferent to Plaintiff’s serious medical needs by 28 forcing him to work in March 2014 when Plaintiff’s medical lay-in excused him from work in 9 1 April of 2015. Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir.1994) (The Eighth Amendment 2 does not apply where prisoners have been required to work unless they are compelled to perform 3 physical labor beyond their physical limitations.) Likewise, Naftzger would not have been 4 deliberately indifferent to Plaintiff’s serious medical needs by forcing him to work in May 2014, 5 as reflected in Plaintiff’s third exhibit (id., Exh. 3, p. 11) when Plaintiff’s medical lay-in excused 6 him from work in April 2015.1 The Court need not accept as true “allegations that contradict exhibits attached to the 7 8 Complaint . . . or allegations that are merely conclusory, unwarranted deductions of fact, or 9 unreasonable inferences.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) 10 citing Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008); 11 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Plaintiff’s allegations that 12 Naftzger required him to work when Plaintiff had a medical lay in excusing it contradict the 13 exhibits attached to the FAC. Plaintiff’s exhibits show that, though Plaintiff did have a medical 14 lay-in in April 2015 it did not cover either March or May 2014, when Plaintiff’s exhibits show he 15 was disputing his ability to work with Naftzger. Thus, Plaintiff fails to state a cognizable claim 16 against Naftzger for deliberate indifference to his serious medical needs on Plaintiff’s allegations 17 that he forced Plaintiff to work when Plaintiff was allegedly excused by a medical lay-in. Further, this new claim against Naftzger exceeds the leave to amend given in the first 18 19 screening order where Plaintiff was explicitly informed that the FAC must be “complete in itself 20 without reference to the prior or superceded pleading,” Local Rule 220 and prohibited changing 21 the nature of this suit by adding new, unrelated claims in a first amended complaint. (See Doc. 22 10, p. 9, citing George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).) 23 Thus, Plaintiff should not be extended leave to amend this claim against C/O Naftzger. RECOMMENDATIONS 24 Plaintiff’s complaint (Doc. 1) states cognizable due process claim against C/O Naftzger 25 26 upon which he should be allowed to proceed. However, none of the rest of Plaintiff’s claims, 27 1 28 Even if the doctor mistakenly affixed the wrong year to his order—writing 2015 when he meant 2014—the medical lay-in still would not correspond to the days at issue. 10 1 either in the complaint, or in the FAC (Doc. 13) are cognizable. All other claims and defendants 2 should be dismissed with prejudice and the FAC should be stricken. Plaintiff was provided the 3 pleading and legal standards for his claim in the complaint against Warden Frauenheim, but chose 4 not to amend that claim. Further, the deficiencies in Plaintiff’s deliberate indifference claim 5 against Naftzger in the FAC are not capable of correction through amendment. Thus, leave to 6 amend would be futile. Akhtar v. Mesa, 698 F.3d 1202, 1212-13 (9th Cir. 2012). 7 Accordingly, based on the foregoing, the Court RECOMMENDS: 8 1. 9 This action should proceed on Plaintiff’s due process claim against Naftzger in the original complaint (Doc. 1); 10 2. All other claims and defendants should be dismissed with prejudice; and 11 3. The First Amended Complaint (Doc. 13) should be stricken from the record in this action. 12 13 The Clerk of the Court is directed to assign a District Judge to this action. These Findings 14 and Recommendations will be submitted to the United States District Judge assigned to the case, 15 pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 21 days after being served with 16 these Findings and Recommendations, Plaintiff may file written objections with the Court. The 17 document should be captioned “Objections to Magistrate Judge’s Findings and 18 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 19 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 20 Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). Alternatively, if 21 Plaintiff no longer desires to pursue this action, he may file a notice of voluntary dismissal. 22 23 24 25 IT IS SO ORDERED. Dated: March 29, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 26 27 28 11