(PC) Gibson v. Castellanos et al, No. 1:2021cv00794 - Document 17 (E.D. Cal. 2023)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that this Case Proceed with Plaintiff's Claims for Retaliation and Excessive Force Against Defendants Castellanos and Riley, and that all other Claims and Defendants be Dismissed from this Case for Failure to State a Claim signed by Magistrate Judge Gary S. Austin on 04/13/2023. Referred to Judge de Alba; Objections to F&R due by 4/28/2023.(Flores, E)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 REGINALD GIBSON, 8 Plaintiff, 9 10 vs. CASTELLANOS, et al., Defendants. 11 12 13 14 1:21-cv-00794-ADA-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE PROCEED WITH PLAINTIFF’S CLAIMS FOR RETALIATION AND EXCESSIVE FORCE AGAINST DEFENDANTS CASTELLANOS AND RILEY, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED FROM THIS CASE FOR FAILURE TO STATE A CLAIM (ECF No. 16.) 15 OBJECTIONS DUE ON OR BEFORE APRIL 28, 2023 16 17 18 I. BACKGROUND 19 Reginald Gibson (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 20 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 21 commencing this action on May 17, 2021. (ECF No. 1.) On November 8, 2021, Plaintiff filed 22 the First Amended Complaint as a matter of course. (ECF No. 8.) On October 31, 2022, the 23 Court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. 24 (ECF No. 15.) On November 23, 2022, Plaintiff filed the Second Amended Complaint which is 25 now before the Court for screening. 28 U.S.C. § 1915. (ECF. No 16). 26 II. SCREENING REQUIREMENT 27 The court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 1 1 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 2 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 3 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 4 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 5 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 6 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 7 A complaint is required to contain “a short and plain statement of the claim showing that 8 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 9 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 11 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 12 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 13 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 14 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 15 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 16 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 17 conclusions are not. 18 plausibility standard. Id. 19 III. Id. The mere possibility of misconduct falls short of meeting this SUMMARY OF SECOND AMENDED COMPLAINT 20 Plaintiff is presently incarcerated at California Correctional Institution in Tehachapi, 21 California. The events at issue in the Second Amended Complaint allegedly occurred at Kern 22 Valley State Prison in Delano, California, when Plaintiff was incarcerated there in the custody of 23 the California Department of Corrections and Rehabilitation. Plaintiff names as defendants 24 Correctional Officers E. Castellanos and C/O C. Riley.1 25 26 27 28 1 Plaintiff names only Defendants Castellanos and Riley in the list of defendants for the Second Amended Complaint. (ECF No. 16 at &, 2.) However, in the allegations of the Second Amended Complaint, Plaintiff also names Defendants Sergeant A. Hernandez and Scott Kernan. (ECF No. 16 at 4 & 5.) The Court shall address all four of the defendants, including Defendants Hernandez and Kernan and the claims against them, in this screening order. 2 1 Plaintiff’s allegations follow: 2 December 1, 2019 Incident (First Incident) 3 On or about December 1, 2019, Plaintiff was housed in administrative segregation F Pod 4 #197. His cellmate inmate Zeigler was returning from suicide watch around 12:30 p.m.. 5 Defendants C/O Castellanos and C/O C. Riley came into cell #197 and told Plaintiff to cuff up. 6 Then officers put Plaintiff’s cellmate in the shower. Defendant Riley told the tower to open cell 7 #197. Both officers entered the cell and told Plaintiff to lie down on the bed. Defendant Riley 8 became verbally abusive and said, “You’re going to drop the lawsuit against my bro J. Figueroa.” 9 (ECF No. 16 at 3 ¶ 3.) Defendant Riley started hitting Plaintiff in the face, then took out his 10 baton and struck Plaintiff in the head. Plaintiff was somewhat unconscious, but he began to wake 11 up and could see and feel Defendant Castellanos cutting Plaintiff’s left leg with a box cutter 12 razor. Then Defendant Riley pulled up Plaintiff’s tee shirt and threatened to kill Plaintiff and 13 blame his cellmate. Plaintiff told Defendant Castellanos, “Please sir don’t kill me or cut me 14 again.” (ECF No. 16 at 4.) They told Plaintiff to be quiet and Castellanos hit him again all over 15 his body and head with his baton. Then they told Plaintiff if he doesn’t say anything, they will 16 not return. 17 Once Plaintiff’s cellmate returned from the shower he started banging on the door trying 18 to get Plaintiff some medical help. When Third Watch came in they had Plaintiff transported to 19 an outside medical facility in Delano. They took photos of Plaintiff’s injuries. 20 Plaintiff’s appeal was answered at the second level on January 21, 2020. He was 21 informed that any action taken on staff misconduct is confidential and would not be revealed to 22 Plaintiff. Plaintiff contends that the Secretary Level violated its own regulation by stating that 23 Plaintiff’s third level appeal was untimely, because the response states that it exhausts the 24 administrative remedies available to Plaintiff. Plaintiff repeatedly informed prison staff and the 25 Warden of the beating and the ill treatment he suffered at the hands of Defendants Castellanos 26 and Riley, by his 602 and statement and video. Defendant Sergeant R. Hernandez failed to 27 properly investigate and take proper actions to discipline those involved. Plaintiff suffers from 28 balance problems as a result of injuries to his head and leg. 3 1 April 4, 2020 Incident (Second Incident) 2 On April 4, 2020, Plaintiff was still housed in administrative segregation. He was waiting 3 for a.m. yard when Defendant Castellanos attacked him again, fracturing his nasal bone and 4 knocking out his front right tooth. Defendant Castellanos asked Plaintiff if he wanted to go to 5 yard, and Plaintiff said yes. Once Castellanos put the hand cuffs on Plaintiff, he took Plaintiff’s 6 left arm and started walking him to the yard. Plaintiff believes he asked him what he had in his 7 hand, and Plaintiff told him it’s a book. Then he began to attack Plaintiff, throwing him up 8 against the wall and hitting him in the face. Then he threw Plaintiff to the ground and jumped 9 on top of Plaintiff, hitting him in the face and knocking out his right front tooth, making his face 10 swollen, cutting his top lip, and fracturing his nasal bone. Then he wrote a false report stating 11 that Plaintiff had attacked him with his walking cane. To cover up the lies on the report, he wrote 12 Plaintiff up on April 4, 2020. Defendant Scott Kernan failed to properly train Defendants 13 Castellanos and Riley to ensure they don’t use excessive force against prisoners. 14 Plaintiff was retaliated against by Defendant Castellanos for writing him up for excessive 15 force on December 1, 2019, so he turned around and attacked Plaintiff and put him in the hospital 16 on April 4, 2020. He kicked Plaintiff in the face while he was handcuffed and wrote a false report 17 stating that Plaintiff had attacked him with his walking cane. Plaintiff had additional time added 18 to his release date. 19 Plaintiff was sent to the outside hospital again. Plaintiff suffered physical injuries to his 20 head; his front right tooth was knocked out; and his nasal bone was broken. Plaintiff also suffers 21 emotional and mental distress. 22 Relief Requested 23 Plaintiff requests a declaratory judgment that Defendants’ actions violated Plaintiff’s 24 rights, costs of suit, and other relief as the court deems just and proper. Plaintiff also seeks 25 monetary damages, compensatory and punitive damages in the amount of $4 million. 26 /// 27 /// 28 /// 4 1 IV. PLAINTIFF’S CLAIMS 2 A. 3 The Civil Rights Act under which this action was filed provides: 4 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 5 6 7 8 Civil Rights Act, 42 U.S.C. § 1983 42 U.S.C. § 1983. 9 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 10 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 11 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 12 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 13 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 14 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law 15 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the 16 federal Constitution, Section 1983 offers no redress.” Id. 17 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 18 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution 19 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 20 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 21 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 22 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 23 which he is legally required to do that causes the deprivation of which complaint is made.’” 24 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 25 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 26 established when an official sets in motion a ‘series of acts by others which the actor knows or 27 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 28 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 5 1 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 2 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 3 1026 (9th Cir. 2008). Excessive Force – Eighth Amendment Claim 4 B. 5 “After conviction, the Eighth Amendment serves as the primary source of substantive 6 protection. . . in cases. . . . where the deliberate use of force is challenged as excessive and 7 unjustified.” Graham, 490 U.S. at 395 n.10 (citing Whitley v. Albers, 475 U.S. 312, 327 (1986)); 8 Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1238 (9th Cir. 2001); Dennis v. Thurman, 959 9 F.Supp. 1253, 1257 n.1 (C.D. Cal. 1997). 10 What is necessary to show sufficient harm for purposes of the Cruel and Unusual 11 Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . .” Hudson 12 v. McMillian, 503 U.S. 1, 8 (1992). “The objective component of an Eighth Amendment claim 13 is . . . contextual and responsive to contemporary standards of decency.” Id. (internal quotation 14 marks and citations omitted). The malicious and sadistic use of force to cause harm always 15 violates contemporary standards of decency, regardless of whether or not significant injury is 16 evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment 17 excessive force standard examines de minimis uses of force, not de minimis injuries)). However, 18 not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Id. at 9. 19 “The Eighth Amendment’s prohibition of cruel and unusual punishments necessarily excludes 20 from constitutional recognition de minimis uses of physical force, provided that the use of force 21 is not of a sort ‘repugnant to the conscience of mankind.” Id. at 9-10 (internal quotations marks 22 and citations omitted). 23 “[W]henever prison officials stand accused of using excessive physical force in violation 24 of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was 25 applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to 26 cause harm.” Id. at 7. “In determining whether the use of force was wanton and unnecessary, it 27 may also be proper to evaluate the need for application of force, the relationship between that 28 need and the amount of force used, the threat reasonably perceived by the responsible officials, 6 1 and any efforts made to temper the severity of a forceful response.” Id. (internal quotation marks 2 and citations omitted). “The absence of serious injury is . . . relevant to the Eighth Amendment 3 inquiry, but does not end it.” Id. 4 The Court finds that Plaintiff states cognizable claims for use of excessive force in 5 violation of the Eighth Amendment against Defendants C/O Castellanos for both the December 6 1, 2019 and April 4, 2020 incidents, and against Defendant C/O Riley for only the December 1, 7 2019 incident. Retaliation – First Amendment Claim 8 C. 9 “Prisoners have a First Amendment right to file grievances [and lawsuits] against prison 10 officials and to be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 11 (9th Cir. 2012) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the 12 prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An 13 assertion that a state actor took some adverse action against an inmate (2) because of (3) that 14 prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 15 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” 16 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). To state a cognizable retaliation 17 claim, Plaintiff must establish a nexus between the retaliatory act and the protected activity. 18 Grenning v. Klemme, 34 F.Supp.3d 1144, 1153 (E.D. Wash. 2014). 19 The Court finds that Plaintiff’s allegations are sufficient to state cognizable claims for 20 retaliation in violation of the First Amendment against Defendant C/O Riley for the December 21 1, 2019 incident, and against Defendant C/O Castellanos for the April 4, 2020 incident. 22 D. 23 In addition to money damages, Plaintiff seeks a declaratory judgment that Defendants’ 24 Request for Declaratory Relief actions violated Plaintiff’s rights. 25 Plaintiff’s request for a declaratory judgment should be denied because it is subsumed by 26 Plaintiff’s damages claim. See Rhodes, 408 F.3d at 565-66 n.8 (because claim for damages entails 27 determination of whether officers’ alleged conduct violated plaintiff’s rights, the separate request 28 for declaratory relief is subsumed by damages action); see also Fitzpatrick v. Gates, No. CV 007 1 4191-GAF (AJWx), 2001 WL 630534, at *5 (C.D. Cal. Apr. 18, 2001) (“Where a plaintiff seeks 2 damages or relief for an alleged constitutional injury that has already occurred declaratory relief 3 generally is inappropriate[.]”) 4 E. 5 Plaintiff claims that Defendant C/O Castellanos wrote a false disciplinary report against 6 him. This allegation, even if true, does not raise a constitutional claim because there is no due 7 process right to be free from false disciplinary charges. The falsification of a disciplinary report 8 does not state a standalone constitutional claim. Canovas v. California Dept. of Corrections, 9 2:14-cv-2004 KJN P, 2014 WL 5699750, n.2 (E.D. Cal. 2014); see e.g., Lee v. Whitten, 2:12- 10 cv-2104 GEB KJN P, 2012 WL 4468420, *4 (E.D. Cal. 2012). There is no constitutionally 11 guaranteed immunity from being falsely or wrongly accused of conduct which may result in the 12 deprivation of a protected liberty interest. Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); 13 Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)). “Specifically, the fact that a prisoner 14 may have been innocent of disciplinary charges brought against him and incorrectly held in 15 administrative segregation does not raise a due process issue. The Constitution demands due 16 process, not error-free decision-making.” Jones v. Woodward, 2015 WL 1014257, *2 (E.D. Cal. 17 2015) (citing Ricker v. Leapley, 25 F.3d 1406, 1410 (8th Cir. 1994); McCrae v. Hankins, 720 18 F.2d 863, 868 (5th Cir. 1983)). Therefore, Plaintiff has no protected liberty interest against false 19 information being reported against him, and he fails to state a claim for false reports against him. False Reports 20 F. 21 Plaintiff alleges that the disciplinary proceeding against him resulted in additional time 22 Due Process added to his release date. 23 When a prisoner challenges the legality or duration of his custody, or raises a 24 constitutional challenge which could entitle him to an earlier release, his sole federal remedy is 25 a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 26 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an 27 allegedly unconstitutional conviction or imprisonment, “a § 1983 plaintiff must prove that the 28 conviction or sentence has been reversed on direct appeal, expunged by executive order, declared 8 1 invalid by a state tribunal authorized to make such determination, or called into question by a 2 federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 3 U.S. 477, 487-88 (1994). “A claim for damages bearing that relationship to a conviction or 4 sentence that has not been so invalidated is not cognizable under § 1983.” Id. at 488. This 5 “favorable termination” requirement has been extended to actions under § 1983 that, if 6 successful, would imply the invalidity of prison administrative decisions which result in a 7 forfeiture of good-time credits. Edwards v. Balisok, 520 U.S. 641, 643–647 (1997). 8 The Complaint does not contain any allegations to show that Plaintiff’s finding of guilt 9 which resulted in time added to his release date has been reversed, expunged, declared invalid, 10 or called into question by a writ of habeas corpus. Thus, Plaintiff is barred by Heck and Edwards 11 from pursuing any claims under § 1983 concerning the process he was provided which resulted 12 in time added to his release date. Prison Appeals Process –[ Defendant] R. Hernandez 13 G. 14 Plaintiff alleges that Defendant Sergeant R. Hernandez failed to properly investigate his 15 appeals and take proper actions to discipline those involved. He also alleges that the “Secretary 16 Level violated its own regulation by stating that Plaintiff’s third level appeal was untimely.” 17 (ECF No. 16 at 4.) 18 Plaintiff cannot allege a due process claim based on his allegations that defendants 19 hindered his pursuit of administrative remedies. A prisoner cannot state a due process claim based 20 on the handling of his grievances. Defendants’ actions in responding to Plaintiff’s appeals, alone, 21 cannot give rise to any claims for relief under section 1983 for violation of due process. “[A 22 prison] grievance procedure is a procedural right only, it does not confer any substantive right 23 upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. 24 DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 25 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to a specific 26 grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of 27 grievance procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 28 (9th Cir. 1988). “Hence, it does not give rise to a protected liberty interest requiring the 9 1 procedural protections envisioned by the Fourteenth Amendment.” Azeez, 568 F. Supp. at 10; 2 Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). Actions in reviewing a prisoner’s 3 administrative appeal, without more, are not actionable under section 1983. Buckley, 997 F.2d 4 at 495. Thus, since he has neither a liberty interest, nor a substantive right in inmate appeals, 5 Plaintiff fails to state a cognizable claim for the processing and/or reviewing of his 602 inmate 6 appeals. State Law Claims – [Defendant] Scott Kernan 7 H. 8 Plaintiff alleges that defendant Scott Kernan failed to train Defendants Castellanos and 9 Riley not to use excessive force against inmates. This is a state law claim. Plaintiff is informed 10 that violation of state tort law, state regulations, rules and policies of the CDCR, or other state 11 law is not sufficient to state a claim for relief under § 1983. Section 1983 does not provide a 12 cause of action for violations of state law. See Galen v. Cnty. of Los Angeles, 477 F.3d 652, 662 13 (9th Cir. 2007). To state a claim under § 1983, there must be a deprivation of federal 14 constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 (1976); also see Buckley v. 15 City of Redding, 66 F.3d 188, 190 (9th Cir. 1995); Gonzaga University v. Doe, 536 U.S. 273, 16 279 (2002). Although the court may exercise supplemental jurisdiction over state law claims, 17 Plaintiff must first have a cognizable claim for relief under federal law. See 28 U.S.C. § 1367. 18 Here, the Court has found cognizable federal claims in the Second Amended Complaint; 19 however, Plaintiff has not sufficiently pleaded the claim presentation requirement contained in 20 California Government Code § 900 et seq. 21 California’s Government Claims Act establishes certain conditions precedent to the filing 22 of a lawsuit against a public entity. State v. Superior Court (Bodde), 32 Cal. 4th 1234, 1237, 90 23 P.3d 116, 118 (2004). “[A] plaintiff must timely file a claim for money or damages with the 24 public entity, (§ 911.2.), and the failure to do so bars the plaintiff from bringing suit against that 25 entity, (§ 945.4.).” Id. Compliance with the claim presentation requirement is an element of the 26 cause of action, Bodde, 32 Cal.4th at 1240, and is required, Mangold v. California Public Utilities 27 Com’n, 67 F.3d 1470, 1477 (9th Cir. 1995), and “failure to file a claim is fatal to a cause of 28 action,” Hacienda La Puente Unified School Dist. Of Los Angeles v. Honig, 976 F.2d 487, 495 10 1 (9th Cir. 1992); City of Stockton v. Superior Court, 42 Cal.4th 730, 738 (Cal. 2007) at 738; Shirk 2 v. Vista Unified Sch. Dist., 42 Cal.4th 201, 208-09 (Cal. 2007). The government claim must be 3 filed or presented to the public entity no later than six months after the cause of action accrues. 4 California Government Code § 911.2. A plaintiff “must allege facts demonstrating or excusing 5 compliance with the claim presentation requirement.” Robinson v. Alameda Cty., 875 F. Supp. 6 2d 1029, 1043 (N.D. Cal. 2012) (quoting Bodde, 32 Cal.4th at 1243; Mangold, 67 F.3d at 1477 7 (quoting Snipes v. City of Bakersfield, 145 Cal.App.3d 861, 865, 193 Cal.Rptr. 760 (1983) 8 (“Where compliance with the [CGCA] is required, the plaintiff must allege compliance or 9 circumstances excusing compliance, or the complaint is subject to general demurrer.”)); D.K. ex 10 rel. G.M. v. Solano County Office of Education, 667 F.Supp.2d 1184, 1195 (E.D. Cal. 2009); 11 Karim–Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 (9th Cir. 1988); Flanagan 12 v. Benicia Unified School District, 2008 WL 435355 (E.D .Cal. Feb. 14, 2008)). 13 In the present case, Plaintiff has not alleged that he complied with the Government Claims 14 Act, nor has he provided his state claim as an attachment to the complaint, nor has he alleged 15 what specific facts and causes of action were referred to in the claim. Without such information, 16 Plaintiff has not sufficiently pleaded facts demonstrating that he complied with the Government 17 Claims Act in bringing his state law claims. Therefore, Plaintiff’s state law claims fail. 18 V. CONCLUSION AND RECOMMENDATIONS 19 For the reasons set forth above, the court finds that Plaintiff states cognizable claims in 20 the Second Amended Complaint against Defendants C/O Castellanos and C/O Riley for use of 21 excessive force in violation of the Eighth Amendment and retaliation in violation of the First 22 Amendment. 23 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give 24 leave to amend when justice so requires.” However, the Court previously granted Plaintiff leave 25 to amend the complaint, with ample guidance by the Court. Plaintiff has now filed three 26 complaints without stating any claims except against Defendants Castellanos and Riley for 27 excessive force and retaliation. The court is persuaded that Plaintiff is unable to allege any facts, 28 based upon the circumstances he challenges, that would state additional cognizable claims under 11 1 section 1983. “A district court may deny leave to amend when amendment would be futile.” 2 Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013). The court finds that the deficiencies 3 outlined above are not capable of being cured by amendment, and therefore further leave to 4 amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 5 1127 (9th Cir. 2000). 6 7 8 Therefore, IT IS HEREBY RECOMMENDED that pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e): 1. This action proceed with Plaintiff’s Second Amended Complaint against 9 Defendants C/O Castellanos for both the Dec. 1, 2019 and April 4, 2020 incidents, 10 and against C/O Riley for only the Dec. 1, 2019 incident, for use of excessive 11 force in violation of the Eighth Amendment; 12 2. Against defendant Riley for the Dec. 1, 2019 incident, and against defendant 13 Castellanos for the Apr. 4, 2020 incident, for retaliation in violation of the First 14 Amendment; 15 3. 16 17 18 That all other claims and defendants be dismissed from this case for failure to state a claim, without leave to amend; and 4. This case be referred back to the magistrate judge for further proceedings, including initiation of service of process. 19 These Findings and Recommendations will be submitted to the United States District 20 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). On or 21 before April 28, 2023, Plaintiff may file written objections with the Court. The document should 22 be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is 23 advised that failure to file objections within the specified time may result in the waiver of rights 24 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 25 923 F.2d 1391, 1394 (9th Cir. 1991)). 26 27 28 12 1 2 3 4 5 IT IS SO ORDERED. Dated: April 13, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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