(PC) Owens v. Rapoport, No. 2:2016cv00273 - Document 43 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/2/2018 RECOMMENDING defendants' 31 motion to dismiss be denied against defendant Rapoport with respect to the Fourteenth Amendment substantive due process clai m and against defendant Virga with respect to the First Amendment retaliation claim; the procedural due process claim against defendant Rapoport be dismissed; all claims for monetary damages against the defendants in their official capacities be dis missed; defendants' claims of qualified immunity be denied without prejudice to renewal at a later stage of the proceedings; and plaintiff's 42 motion to process the case be denied as moot. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THEON OWENS, 12 13 14 No. 2:16-cv-00273 TLN CKD P Plaintiff, v. FINDINGS AND RECOMMENDATIONS ELENA RAPOPORT, et al., 15 Defendants. 16 17 I. Introduction 18 Plaintiff is a state prisoner proceeding pro se with this civil rights action pursuant to 42 19 U.S.C. § 1983. This action proceeds on the Second Amended Complaint (“SAC”) filed 20 November 10, 2016. ECF No. 18. The court determined that plaintiff stated a cognizable claim 21 under the Fourteenth Amendment due process clause against defendant Rapoport for causing 22 plaintiff to be involuntarily medicated between September 24, 2012 and November 28, 2012, 23 absent the conditions necessary for such treatment. The court also determined that service was 24 appropriate for defendant Virga based on an alleged retaliatory prison transfer in violation of the 25 First Amendment. ECF No. 18 at 5. 26 Before the court is defendants' motion to dismiss the complaint under Federal Rule of 27 Civil Procedure 12(b)(6) for failure to state a claim. ECF No. 31. Plaintiff has filed an 28 opposition, and defendants have filed a reply. ECF Nos. 37-39, 40. Having carefully considered 1 1 the record and the applicable law, the undersigned recommends that defendants' motion be denied 2 in part and granted in part. 3 II. 4 A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) 5 challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase 6 Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the “notice pleading” standard 7 of the Federal Rules of Civil Procedure, a plaintiff’s complaint must provide, in part, a “short and 8 plain statement” of plaintiff’s claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see 9 also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). “To survive a motion to dismiss, 10 a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that 11 is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. 12 Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads 13 factual content that allows the court to draw the reasonable inference that the defendant is liable 14 for the misconduct alleged.” Id. 15 Standards for a Motion to Dismiss In considering a motion to dismiss for failure to state a claim, the court accepts all of the 16 facts alleged in the complaint as true and construes them in the light most favorable to the 17 plaintiff. Corrie v. Caterpillar, Inc., 503 F.3d 974, 977 (9th Cir. 2007). The court is “not, 18 however, required to accept as true conclusory allegations that are contradicted by documents 19 referred to in the complaint, and [the court does] not necessarily assume the truth of legal 20 conclusions merely because they are cast in the form of factual allegations.” Paulsen, 559 F.3d at 21 1071. The court must construe a pro se pleading liberally to determine if it states a claim and, 22 prior to dismissal, tell a plaintiff of deficiencies in her complaint and give plaintiff an opportunity 23 to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. 24 Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); accord Balistreri v. Pacifica Police 25 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (stating that “pro se pleadings are liberally construed, 26 particularly where civil rights claims are involved”); see also Hebbe v. Pliler, 627 F.3d 338, 342 27 & n.7 (9th Cir. 2010) (stating that courts continue to construe pro se filings liberally even when 28 evaluating them under the standard announced in Iqbal). 2 1 III. 2 Discussion A. The Second Amended Complaint 3 In the SAC, plaintiff alleges that he was involuntarily medicated by defendant Rapoport, a 4 staff psychiatrist at California State Prison-Sacramento, starting on September 24, 2012 and 5 lasting for a period of 65 days, all because he declined to speak with her. ECF No. 18 at 7-8, 15- 6 16. Plaintiff suffered from serious side effects as a result of the medications even after he told 7 defendant Rapoport that he was allergic to Haldol which was first administered to him. ECF No. 8 18 at 7-8, 16-18. 9 According to plaintiff, defendant Rapoport prepared an Emergency Involuntary 10 Medication Order (“EIMO”) based on a falsified allegation that plaintiff had threatened her. Id. 11 at 8, 18. Plaintiff was issued a Rules Violation Report (“RVR”) based on this false allegation. 12 ECF No. 18 at 26. Plaintiff contested the RVR at a disciplinary hearing and also challenged the 13 EIMO in proceedings before an administrative law judge. Id. at 28-29. The disciplinary 14 allegation and EIMO were both dropped according to plaintiff. Id. 15 Plaintiff filed an administrative grievance based on this alleged misuse of medication as a 16 form of punishment by defendant Rapoport. ECF No. 18 at 20. On October 11, 2012, plaintiff 17 contacted defendant Tim Virga, Warden at CSP-Sacramento, and complained about the use of 18 involuntary medication by defendant Rapoport. Plaintiff also indicates that he sent a subsequent 19 letter to defendant Virga on December 1, 2012 contesting Rapoport’s letter to the warden 20 indicating that she did not feel safe working at CSP-Sacramento where plaintiff was housed. Id. 21 at 27, 30. 22 Plaintiff further alleges that defendant Virga transferred him to “the worst prison in 23 C.D.C.R.” in retaliation for prevailing at his disciplinary and involuntary medication hearings and 24 for filing a grievance as well as a lawsuit. ECF No. 18 at 9, 30-31. The prison transfer did not 25 advance any legitimate correctional goal according to plaintiff, but was done to prevent him from 26 further exercising his constitutional rights. Id. Defendant Virga’s conduct “chilled the plaintiff’s 27 protected conduct for three years….” Id. at 36. 28 //// 3 1 2 By way of relief, plaintiff requests declaratory relief as well as compensatory and punitive damages. ECF No. 18 at 37-38. 3 B. Motion to Dismiss 4 Defendants Rapoport and Virga filed a motion to dismiss asserting that plaintiff has failed 5 to state either a Fourteenth Amendment due process violation based on the involuntary 6 administration of an antipsychotic medication or a First Amendment retaliation claim. ECF No. 7 31-1 at 1. 8 With respect to the due process claim, defendant Rapoport points out that plaintiff 9 acknowledged telling various prison officials that he was suicidal on September 24, 2012. ECF 10 No. 31-1 at 4 (citing ECF No. 18 at ¶¶ 15, 17, 19). Additionally, he also “admitted that he 11 responded volatilely to Defendant Rapaport when she approached his holding cell.” ECF No. 31- 12 1 at 4 (citing ECF No. 18 at ¶ 22). This information indicates that defendant Rapoport ordered 13 plaintiff to be medicated in order to protect staff and other inmates rather than for a “nefarious 14 purpose.” Id. Furthermore, the second amended complaint fails to allege a procedural due 15 process violation since plaintiff acknowledges that defendant Rapoport’s decision was reviewed 16 by an administrative law judge. Id. at 5. 17 Defendant Virga also seeks dismissal of the First Amendment retaliation claim. According 18 to defendant Virga, plaintiff has failed to plead sufficient facts demonstrating that any adverse 19 state action was taken or that plaintiff was engaged in conduct protected by the First Amendment. 20 ECF No. 31-1 at 6. Specifically, defendant emphasizes that CSP-Sacramento and Pelican Bay 21 State Prison are both “comparable Level Four institutions in terms of security level.” Id. 22 Therefore, plaintiff’s transfer from one Level Four facility to a different Level Four facility does 23 not constitute an adverse prison transfer. Id. (citing Cal. Code Regs. tit. 15, § 3043.6(a)(1) 24 (2012)). Additionally, defendant Virga contends that the prison transfer was “for the benefit of 25 both parties and to preserve institutional safety and security.” ECF No. 31-1 at 7 (citing Bell v. 26 Wolfish, 441 U.S. 520, 546-47 (1979)). Thus, plaintiff’s transfer to Pelican Bay State Prison was 27 for a legitimate correctional goal. Id. 28 ///// 4 1 Finally, both defendants Rapoport and Virga contend that they are immune from suit in 2 their official capacities and qualifiedly immune from suit in their individual capacities. Id. at 7- 3 10. 4 C. Legal Standards 5 1. 6 Ordinarily, interests protected by the due process clause may arise from two sources—the Due Process 7 due process clause itself and state law. Meachum v. Fano, 427 U.S. 215, 223–27 (1976). 8 Changes in conditions so severe as to affect the sentence imposed in an unexpected manner 9 implicate the due process clause itself, whether or not state law authorized the changes. Sandin v. 10 Conner, 515 U.S. 472, 484, (1995) (citing Vitek v. Jones, 445 U.S. 480, 493 (1980) (transfer to 11 mental hospital), and Washington v. Harper, 494 U.S. 210, 221–22 (1990) (involuntary 12 administration of psychotropic drugs)). A prisoner can show a Fourteenth Amendment liberty 13 interest only if he alleges a change in confinement that imposes an “atypical and significant 14 hardship ... in relation to the ordinary incidents of prison life.” Id. (citations omitted). Here, 15 plaintiff alleges a liberty interest in being free from forcible drugging by prison officials. Both 16 California law and the due process clause itself confer upon an inmate a right to be free from the 17 arbitrary administration of anti-psychotic medication. See Keyhea v. Rushen, 178 Cal. App. 3d 18 526 (1986); Washington, 494 U.S. at 221–22. As such, plaintiff has met the threshold 19 requirement under Sandin. See 515 U.S. at 484. 20 If a liberty interest is implicated, the prisoner must receive minimum due process prior to 21 deprivation of that interest. See Wilkinson v. Austin, 545 U.S. 209, 229 (2005). In the context of 22 involuntary medication, “given the requirements of the prison environment, the Due Process 23 Clause permits the State to treat a prison inmate who has a serious mental illness with 24 antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the 25 treatment is in the inmate’s medical interest.” Washington , 494 U.S. 210, 227 (1990) (holding 26 that prisoners possess “a significant liberty interest in avoiding the unwanted administration of 27 antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment.”). The decision 28 whether to medicate an inmate against his will satisfies due process when facilitated by an 5 1 administrative review by medical personnel not directly involved in the inmate's instant 2 treatment. Id. at 233. Procedural due process is satisfied if the inmate is provided with notice, 3 the right to be present at an adversarial hearing, and the right to be present and cross-examine 4 witnesses. Id. at 235. Appointment of counsel is not required; the provision of a lay advisor who 5 understands the psychiatric issues involved is sufficient protection. Id. at 236. 6 2. First Amendment 7 “A prison inmate retains those First Amendment rights that are not inconsistent with his 8 status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell 9 v. Procunier, 417 U.S. 817, 822 (1974). Prisoners' First Amendment rights include the right to 10 free speech and to petition the government. Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 11 2003); Bradley v. Hall, 64 F.3d 1276, 1278-79 (9th Cir. 1995); see also Sandin v. Conner, 515 12 U.S. 472, 487 n. 11 (1995). Nevertheless, “the constitutional rights that prisoners possess are 13 more limited in scope than the constitutional rights held by individuals in society at large.” Shaw 14 v. Murphy, 532 U.S. 223, 229 (2001). 15 The Constitution protects prisoners from deliberate retaliation by government officials for 16 the exercise of their First Amendment rights. See Rhodes v. Robinson, 408 F.3d 559, 567 (9th 17 Cir. 2005); Vignolo v. Miller, 120 F.3d 1075, 1077-78 (9th Cir. 1997). Because retaliation by 18 prison officials may chill an inmate's exercise of legitimate First Amendment rights, retaliatory 19 conduct is actionable regardless of whether it otherwise constitutes misconduct. Rhodes, 408 20 F.3d at 567 (citing Pratt v. Rowland, 65 F.3d 802, 806 & n. 4 (9th Cir. 1995)); see Thomas v. 21 Evans, 880 F.2d 1235, 1242 (11th Cir. 1989) (“The penalty need not rise to the level of a separate 22 constitutional violation.”). Even so, there must be a causal connection between the allegedly 23 retaliatory conduct and the action that provoked the retaliation; a plaintiff must “show that the 24 protected conduct was a ‘substantial’ or ‘motivating’ factor in the defendant's decision [to act].” 25 Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) (citing Mt. Healthy City 26 Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). 27 28 To withstand a motion to dismiss, a plaintiff suing prison officials pursuant to § 1983 for retaliation must allege facts that show the following: (1) “[A] state actor took some adverse action 6 1 against [the] inmate (2) because of (3) that prisoner's protected conduct, and ... such action (4) 2 chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably 3 advance a legitimate correctional goal.” Rhodes, 408 F.3d at 567-68 (citing Resnick v. Hayes, 4 213 F.3d 443, 449 (9th Cir. 2000); Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994)) 5 (footnote omitted). 6 D. Analysis 7 1. 8 Plaintiff has sufficiently alleged that he was not a danger to himself or others and that the 9 Due Process specific treatment that was initiated by defendant Rapoport was not in his medical interest 10 because he was allergic to it. See Washington , 494 U.S. at 227 (1990). While defendant argues 11 that plaintiff told various prison officials that he was suicidal, the second amended complaint 12 explains that plaintiff told prison officials that this was a pretext in order to get transferred out of 13 the unit in which defendant Rapoport worked. At the pleading stage, these allegations against 14 defendant Rapoport are sufficient to give rise to a claim for relief under section 1983. 15 Accordingly, the undersigned recommends denying the motion to dismiss against defendant 16 Rapoport with respect to the Fourteenth Amendment substantive due process claim. 17 To the extent that defendant Rapoport contends that plaintiff has not sufficiently alleged a 18 procedural due process violation, the undersigned agrees. The United States Supreme Court has 19 cogently explained the difference between a substantive and a procedural due process claim in 20 this particular context. “[T]he substantive issue is what factual circumstances must exist before 21 the State may administer antipsychotic drugs to the prisoner against his will; the procedural issue 22 is whether the State’s nonjudicial mechanisms used to determine the facts in a particular case are 23 sufficient.” Washington, 494 U.S. at 220. Here, the second amended complaint only challenges 24 the factual circumstances leading to the forcible administration of antipsychotic medication. It 25 therefore facially alleges a substantive due process claim. Plaintiff does not assert that the 26 nonjudicial procedures utilized by the state were insufficient to protect his substantive rights. 27 Therefore, the undersigned recommends granting defendant’s motion to dismiss the procedural 28 due process claim since no such claim was alleged in the second amended complaint. 7 1 2. 2 In this case, accepting the facts alleged in the complaint as true, plaintiff has stated a First Amendment 3 plausible First Amendment retaliation claim against defendant Virga. Plaintiff does not need to 4 establish an independent constitutional right to assignment at a given prison in order to succeed 5 on a First Amendment retaliation claim as defendant Virga argues. See Pratt v. Rowland, 65 F.3d 6 802, 806 (9th Cir. 1995). The Ninth Circuit has never required “a loss of credit-earning status or 7 a change in classification…” in order to establish an adverse action for a First Amendment 8 retaliation claim. See Pratt, 65 F.3d at 806 (concluding that First Amendment retaliation cases 9 “remain good law” even after the Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472 10 (1995)). Defendant’s failure to cite to any case law for this proposition demonstrates the fallacy 11 of the argument. See ECF No. 31-1 at 6. 12 In addition, the undersigned finds that plaintiff has sufficiently alleged that his prison 13 transfer was because of protected conduct. While plaintiff does not provide the specific dates of 14 his disciplinary or EIMO hearings or even the date of the prison transfer itself, the general 15 sequence of events is apparent from the allegations in the complaint. The last date on which 16 plaintiff alleges that he was forcibly medicated was November 28, 2012. ECF No. 18 at 7-8, 15- 17 16. Therefore, the hearings at which plaintiff successfully challenged defendant Rapoport’s 18 conduct occurred prior to this date as well as prior to defendant Virga’s decision to transfer 19 plaintiff to a different prison. Plaintiff specifically complained to defendant Virga in letters 20 dated October 11, 2012 and December 1, 2012. ECF No. 18 at 27, 30. These factual allegations 21 are sufficient to establish a plausible connection between defendant Virga’s decision to transfer 22 plaintiff because of plaintiff’s successful administrative challenges to defendant Rapoport’s 23 conduct. 24 Defendant Virga’s only remaining argument is that the prison transfer advanced a 25 legitimate correctional goal of “preserv[ing] institutional safety and security” by separating 26 plaintiff from defendant Rapoport. ECF No. 31-1 at 7. However, this argument overlooks the 27 factual allegations in the complaint that detail plaintiff’s numerous attempts to get transferred to a 28 different unit within the same prison in order to avoid having defendant Rapoport as his treating 8 1 psychiatrist. Therefore, plaintiff has facially alleged that the prison transfer “did not advance 2 legitimate goals of the correctional institution or was not tailored narrowly enough to achieve 3 such goals.” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (citing Franklin v. Murphy, 745 4 F.2d 1221, 1230 (9th Cir. 1984)). Taken as true, these allegations are sufficient to allege a First 5 Amendment retaliation claim against defendant Virga. 6 E. Official Capacity Claims 7 Plaintiff has sued each defendant in his or her official capacity. “[A]n official capacity suit 8 is, in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 9 473 U.S. 159, 166 (1985). Unless waived, the Eleventh Amendment bars a federal court award of 10 damages under § 1983 against a state, state agency, or state official sued in an official capacity. 11 Quern v. Jordan, 440 U.S. 332, 342 (1979). Moreover, neither a state nor a state official sued in 12 an official capacity for monetary damages is a “person” for purposes of a § 1983 damages action. 13 Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Therefore, even if a state waives 14 its Eleventh Amendment immunity in federal court, Will precludes a damages action against the 15 state government entity or a state official sued in an official capacity for monetary damages. Id. 16 For these reasons, plaintiff's claims for damages against defendants in their official capacity 17 should be dismissed. 18 F. Qualified Immunity 19 Finally, defendants argue that they are entitled to qualified immunity because, based on 20 the circumstances under which plaintiff was forcibly medicated, it would not have been clear to a 21 reasonable government official that plaintiff's rights were being violated. Qualified immunity 22 shields government officials “from liability insofar as their conduct does not violate clearly 23 established statutory or constitutional rights of which a reasonable person would have known.” 24 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). Defendants bear the burden 25 of establishing qualified immunity. Crawford–El v. Britton, 523 U.S. 574, 586–87 (1998). 26 Generally, the qualified immunity doctrine must “give[ ] ample room for mistaken judgments by 27 protecting ‘all but the plainly incompetent or those who knowingly violate the law.’” Hunter v. 28 Bryant, 502 U.S. 224, 229 (1991). Even if no constitutional violation occurred, the officer should 9 1 prevail if the plaintiff's right “was not ‘clearly established’ or the officer could have reasonably 2 believed that his particular conduct was lawful.” Romero v. Kitsap County, 931 F.2d 624, 627 3 (9th Cir. 1991). 4 To analyze a qualified immunity claim, a court must first determine whether, taken in the 5 light most favorable to the party asserting the injury, the facts alleged show that the defendants 6 violated the claimant's constitutional rights. Saucier v. Katz, 533 U.S. 194, 201 (2001). If the 7 court determines the facts alleged could show violation of a constitutional right, the second step 8 requires determining “whether the right was clearly established.” Id. at 201. The relevant inquiry 9 focuses on “what the officer reasonably understood his powers and responsibilities to be, when he 10 acted, under clearly established standards.” Id. at 208. The plaintiff bears the burden of proving 11 that the right allegedly violated was clearly established at the time of the violation. See Sorrels v. 12 McKee, 290 F.3d 965, 969 (9th Cir. 2002). 13 Here, plaintiff has presented a cognizable Fourteenth Amendment substantive due process 14 claim. During the time period of defendant Rapoport’s alleged acts, an inmate's right to be free 15 from the arbitrary administration of anti-psychotic medication was clearly established by existing 16 case law. See Washington v. Harper, 494 U.S. 210, 221–22 (1990). The question, therefore, is 17 whether defendant Rapoport reasonably could have believed that her conduct was lawful. 18 Defendant argues that she was following state procedures when medicating plaintiff against his 19 will, and therefore she is entitled to qualified immunity. The undersigned finds that the key 20 question is more properly resolved on a motion for summary judgment or at trial, when defendant 21 may present evidence in support of their claim, and the court may properly consider such 22 evidence. Defendant Rapoport’s mere assertion of good faith is insufficient to support a complete 23 defense at this stage in the litigation. 24 Defendant Virga also asserts the defense of qualified immunity and argues that his action 25 in transferring plaintiff to a different prison was reasonable. However, the gravamen of plaintiff’s 26 second amended complaint is that it was possible to transfer plaintiff to a different unit of the 27 same prison in order to avoid being treated by defendant Rapoport. Defendant Virga does not 28 address this allegation in the motion to dismiss. Thus, construing the allegations in the light most 10 1 favorable to plaintiff at this juncture, the undersigned finds insufficient facts to support defendant 2 Virga’s assertion of qualified immunity. 3 Thus, for the purposes of the instant motion, the undersigned cannot resolve the issue of 4 whether defendants are entitled to qualified immunity. Therefore, the undersigned recommends 5 that the motion to dismiss be denied without prejudice to defendants' claim that they are entitled 6 to qualified immunity. 7 IV. Plain Language Summary for Pro Se Party 8 Since you are acting as your own attorney in this case, the court wants to make sure that the 9 words of this order are understood. The following information is meant to explain this order in 10 11 plain English and is not intended as legal advice. The court has reviewed your second amended complaint and concluded that it has sufficiently 12 stated a substantive due process violation by defendant Rapoport for causing you to be 13 involuntarily medicated between September 24, 2012 and November 28, 2012. However, there 14 are not sufficient allegations in your complaint of a separate procedural due process violation. 15 Additionally, federal law does not allow your claim for monetary damages against the defendants 16 in their official capacity to proceed. This does not prevent monetary damages from being 17 awarded against defendants in their individual capacities. Lastly, the court is recommending that 18 defendants’ claim of qualified immunity be denied at this early stage of the proceedings. It may 19 be raised later if defendants so choose. 20 You have fourteen days to explain to the court why this is not the correct outcome in your 21 case. If you choose to do this you should label your explanation as “Objections to Magistrate 22 Judge’s Findings and Recommendations.” The district court judge assigned to your case will 23 review any objections that are filed and will make a final decision on the motion to dismiss. 24 25 In accordance with the above, IT IS HEREBY RECOMMENDED that: 1. Defendants’ motion to dismiss, ECF No. 31, be denied against defendant Rapoport 26 with respect to the Fourteenth Amendment substantive due process claim and against 27 defendant Virga with respect to the First Amendment retaliation claim. 28 2. The procedural due process claim against defendant Rapoport be dismissed. 11 1 2 3 4 3. All claims for monetary damages against the defendants in their official capacities be dismissed. 4. Defendants’ claim of qualified immunity be denied without prejudice to renewal at a later stage of the proceedings. 5 5. Plaintiff’s motion to process the case, ECF No. 42, be denied as moot. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 11 objections shall be served and filed within fourteen days after service of the objections. The 12 parties are advised that failure to file objections within the specified time may waive the right to 13 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 Dated: January 2, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 Owen0273.mtd.docx 23 24 25 26 27 28 12
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