Phillips v. Reinhart

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 MELCHESTER PHILLIPS, JR., Case No. 1:20-cv-01034-DAD-SAB

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

RECOMMNEDING DISMISSING FIRST

13 v. AMENDED COMPLAINT WITHOUT

LEAVE TO AMEND

14 MICHAEL REINHART, et al.,

(ECF No. 7)

15 Defendants.

OBJECTIONS DUE WITHIN THIRTY

16 DAYS

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18 Melchester Phillips, Jr. (“Plaintiff”), proceeding pro se and in forma pauperis, filed this

19 action pursuant to 42 U.S.C. § 1983. On July 31, 2020, Plaintiff’s complaint was screened and

20 found not to state a cognizable claim. (ECF No. 5.) Plaintiff was provided with the legal

21 standards that applied to his claims and was granted leave to file an amended complaint within

22 thirty days. (Id.) Currently before the Court for screening is Plaintiff’s first amended complaint,

23 filed August 24, 2020. (ECF No. 7.)

24 I.

25 SCREENING REQUIREMENT

26 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court

27 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which

relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from

1 such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000)

2 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners);

3 Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis

4 proceedings which seek monetary relief from immune defendants); Cato v. United States, 70

5 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis

6 complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998)

7 (affirming sua sponte dismissal for failure to state a claim). The Court exercises its discretion to

8 screen the plaintiff’s complaint in this action to determine if it “(i) is frivolous or malicious; (ii)

9 fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a

10 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).

11 In determining whether a complaint fails to state a claim, the Court uses the same

12 pleading standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a

13 short and plain statement of the claim showing that the pleader is entitled to relief . . .” Fed. R.

14 Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the

15 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.

17 544, 555 (2007)).

18 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and

19 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89,

20 94 (2007). Although a court must accept as true all factual allegations contained in a complaint,

21 a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A]

22 complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops

23 short of the line between possibility and plausibility of entitlement to relief.’ ” Id. (quoting

24 Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for

25 the court to draw the reasonable conclusion that the defendant is liable for the misconduct

26 alleged. Iqbal, 556 U.S. at 678.

27 / / /

1 II.

2 FIRST AMENDED COMPLAINT ALLEGATIONS

3 Plaintiff is currently a pretrial detainee being held in the Kings County Jail on the charges

4 upon which this action is based. The Court accepts Plaintiff’s allegations in the complaint as

5 true only for the purpose of the sua sponte screening requirement under 28 U.S.C. § 1915.

6 Plaintiff brings this action against California Superior Court Judge Michael Reinhart and

7 the Kings County Superior Court alleging violations of the Fourth, Fifth, Sixth, and Eighth

8 Amendments. (First Am. Compl. (“FAC”), 2, 4, ECF No. 7.)

9 As of August 16, 2020, Plaintiff has spent 311 days in custody and contends that he is

10 falsely imprisoned. (Id. at 5.) Plaintiff was involved in a car accident on November 18, 2018.

11 (Id. at 6.) The police report of the incident charges Plaintiff with reckless driving causing bodily

12 injury, in violation of California Vehicle Code, section 23104(a); and failing to stop for a red

13 signal, in violation of California Vehicle Code, section 21453(a). (Id.) The police report states

14 that neither Plaintiff nor any other occupant of the vehicle had been drinking and none of them

15 showed any signs of impairment. (Id.)

16 On March 25, 2019, Judge Reinhart issued an arrest warrant for Plaintiff. (Id.) Plaintiff

17 was arrested on October 11, 2019, in the State of Washington. (Id.) He was arraigned in

18 Washington on October 14, 2019, and charged with a wet and reckless. (Id.) On October 15,

19 2019, the case involving the arrest warrant was dismissed. (Id.) Attached to Plaintiff’s

20 complaint are several declarations for determination of probable cause. The declaration dated

21 October 14, 2019, states that an arrest warrant issued on March 25, 2019, and Plaintiff is charged

22 with five counts of violating California law. (Id. at 13.) The declaration filed November 14,

23 2019 states that after he was arrested for being a fugitive from justice and while in custody,

24 Plaintiff broke the window in the court holding cell and was charged with malicious mischief 2

25 due to the cost of the repair. (Id. at 14.) The State of Washington dismissed the California

26 fugitive charges assuming that California did not wish to extradite Plaintiff, but that California

27 reinstituted the warrant. (Id.)

1 warrant, and Plaintiff was extradited to Kings County on December 19, 2019. (Id. at 7.)

2 Plaintiff was rearraigned on December 20, 2019. (Id.) He was held to answer in case no. 19cm-

3 0573 on charges of assault with a deadly weapon or causing great bodily injury which are not the

4 charges identified in the police report. (Id.) Plaintiff also includes a copy of the police report in

5 which the officer checked boxes that no driver or occupant of the vehicle had been drinking. (Id.

6 at 19, 20.) The police report shows that Plaintiff broadsided a vehicle that was traveling straight

7 and was investigated for violations of 23104(a), reckless driving of a vehicle that causes bodily

8 injury to a person other than the person driving the vehicle; and 21453(a), failing to stop at a red

9 light, in violation of the California Vehicle Code. (Id. at 15-20.)

10 Plaintiff contends that the warrant for the wet and reckless was not based on probable

11 cause and Plaintiff has been illegally detained by the false warrant and is currently awaiting trial

12 set for August 24, 2020 in Kings County Jail. (Id. at 8.) Plaintiff seeks injunctive relief,

13 monetary damages in the amount of ten million dollars, punitive damages in the amount of three

14 million dollars and damages for pain and suffering in the amount of ten million dollars. (Id. at

15 10.)

16 III.

17 DISCUSSION

18 A. Section 1983

19 Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or

20 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d

21 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006);

22 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). The statute provides:

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Every person who, under color of [state law] ... subjects, or causes to be

24 subjected, any citizen of the United States ... to the deprivation of any rights,

privileges, or immunities secured by the Constitution ... shall be liable to the party

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injured in an action at law, suit in equity, or other proper proceeding for redress.

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27 42 U.S.C. § 1983. “Section 1983 is not itself a source of substantive rights, but merely provides

a method for vindicating federal rights elsewhere conferred.” Crowley v. Nevada ex rel. Nevada

1 Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v. Connor, 490 U.S. 386, 393-

2 94 (1989)) (internal quotation marks omitted).

3 The statute requires that there be an actual connection or link between the actions of the

4 defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. Dep’t of

5 Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). Thus, to state a claim,

6 Plaintiff must allege facts demonstrating the existence of a link, or causal connection, between

7 each Defendant’s actions or omissions and a violation of his federal rights. Lemire v. California

8 Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. Baca, 652 F.3d

9 1202, 1205-08 (9th Cir. 2011). The Ninth Circuit has held that “[a] person ‘subjects’ another to

10 the deprivation of a constitutional right, within the meaning of section 1983, if he does an

11 affirmative act, participates in another’s affirmative acts or omits to perform an act which he is

12 legally required to do that causes the deprivation of which complaint is made.” Johnson v.

13 Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

14 B. Fourth Amendment

15 Plaintiff alleges that he was arrested and is being falsely imprisoned on an illegal warrant.

16 The Fourth Amendment provides that ‘the right of the people to be secure in their persons,

17 houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

18 U.S. Const. amend. IV. “[T]he Fourth Amendment is enforceable against the States through the

19 Fourteenth Amendment.” Camara v. Mun. Court of City & Cty. of San Francisco, 387 U.S. 523,

20 528 (1967). “To establish a viable Fourth Amendment claim, a plaintiff must show not only that

21 there was a search and seizure as contemplated by the Fourth Amendment, but also that said

22 search and seizure was unreasonable and conducted without consent.” Rakas v. Illinois, 439

23 U.S. 128, 143 (1978); United States v. Rubio, 727 F.2d 786, 796–97 (9th Cir. 1983).

24 Here, Plaintiff alleges that he was arrested with an illegally issued warrant. (FAC at 7.)

25 However, while Plaintiff contends he was arrested on a wet and reckless, the documents attached

26 to the complaint show that the warrant charged him with five violations of California law. The

27 court does not have to accept as true allegations that exhibits to the complaint or that are merely

1 State Warriors, 266 F.3d 979, 988 (9th Cir.), opinion amended on denial of reh’g, 275 F.3d 1187

2 (9th Cir. 2001); Daniels-Hall v. Nat'l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). Even

3 assuming that one of the charges was a wet and reckless, the Fourth Amendment is not violated

4 by an arrest where there is probable cause to arrest for a different offense. United States v.

5 Lopez, 482 F.3d 1067, 1076 (9th Cir. 2007).

6 “Probable cause to arrest exists when officers have knowledge or reasonably trustworthy

7 information sufficient to lead a person of reasonable caution to believe that an offense has been

8 or is being committed by the person being arrested.” Rodis v. City, Cty. of San Francisco, 558

9 F.3d 964, 969 (9th Cir. 2009) (citing Lopez, 482 F.3d at 1072 and Beck v. Ohio, 379 U.S. 89, 91

10 (1964)). The Ninth Circuit has defined probable cause as “under the totality of circumstances

11 known to the arresting officers, a prudent person would have concluded that there was a fair

12 probability that [the defendant] had committed a crime.” Lopez, 482 F.3d at 1072 (quoting

13 United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986)). “The probable-cause standard is

14 incapable of precise definition or quantification into percentages because it deals with

15 probabilities and depends on the totality of the circumstances.” Rodis, 558 F.3d at 969 (quoting

16 Maryland v. Pringle, 540 U.S. 366, 371 (2003)). “[P]robable cause is a fluid concept-turning on

17 the assessment of probabilities in particular factual contexts-not readily, or even usefully,

18 reduced to a neat set of legal rules.” Rodis, 558 F.3d at 969 (quoting Illinois v. Gates, 462 U.S.

19 213, 232 (1983)).

20 Here, Plaintiff alleges that the current charges on which he is being held and tried are

21 assault with a deadly weapon or causing great bodily injury. Where subsequent events may have

22 caused charges carrying a different penalty to be filed there is no violation of the Fourth

23 Amendment. Lopez, 482 F.3d at 1076. Under California law, a vehicle is considered a deadly

24 weapon and causing injury by use of a vehicle is sufficient to be convicted of assault with a

25 deadly weapon. People v. Aznavoleh, 210 Cal.App.4th 1181, 1183 (2012); People v. Golde, 163

26 Cal.App.4th 101, 109 (2008); People v. Russell, 129 Cal.App.4th 776, 778 (2005). The police

27 report states that Plaintiff ran a red light and broadsided another vehicle. Plaintiff is being tried

1 not guilty to all charges in the complaint.1 His jury trial has been continued to September 21,

2 2020. Plaintiff has failed to allege sufficient facts for the Court to reasonably infer that he has

3 been seized in violation of the Fourth Amendment. Plaintiff has failed to state a plausible claim

4 for violation of the Fourth Amendment.

5 C. Fifth Amendment

6 Plaintiff brings this action alleging violation of the Fifth Amendment. “[T]he Fifth

7 Amendment’s due process clause applies only to the federal government.” Bingue v. Prunchak,

8 512 F.3d 1169, 1174 (9th Cir. 2008). Since the only defendants named in this action are an

9 employee and a department of the state, the Fifth Amendment does not apply.

10 D. Sixth Amendment

11 Plaintiff also contends that this Sixth Amendment rights have been violated. The Sixth

12 Amendment states,

13 In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime shall

14 have been committed, which district shall have been previously ascertained by

law, and to be informed of the nature and cause of the accusation; to be

15 confronted with the witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assistance of Counsel for his

16 defence.

17 U.S. Const. amend. VI.

18 “The Sixth Amendment identifies the basic rights that the accused shall enjoy in ‘all

19 criminal prosecutions’ ” and these rights are strictly presented “as rights that are available in

20 preparation for trial and at the trial itself.” Martinez v. Court of Appeal of California, Fourth

21 Appellate Dist., 528 U.S. 152, 159–60 (2000). The Sixth Amendment provides for the right of

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23 1 As a general rule, the court may not consider any material outside the pleadings in deciding whether to dismiss the

complaint. There are two exceptions to this rule, when the complaint necessarily relies on the documents or where

24 the court takes judicial notice of documents. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Under

the Federal Rules a court may take judicial notice of a fact that is “not subject to reasonable dispute in that it is either

25 (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Judicial

notice may be taken “of court filings and other matters of public record.” Reyn’s Pasta Bella, LLC v. Visa USA,

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Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); Lee, 250 F.3d at 689.

27 The Court takes judicial notice of the records of the Tulare County Superior Court. Available at

https://cakingsportal.tylerhost.net/CAKINGSPROD/Home/WorkspaceMode?p=0, search case no. 19cms-0573 (last

1 effective assistance of counsel in a criminal prosecution of a serious offense as well as the right

2 for self-representation by waiving counsel. Wheat v. United States, 486 U.S. 153, 158 (1988);

3 Faretta v. California, 422 U.S. 806, 832 (1975).

4 Here, Plaintiff’s factual allegations do not implicate the Sixth Amendment. As discussed

5 above, Plaintiff has been appointed counsel to represent him in the state court action and a jury

6 trial has been scheduled. Plaintiff has failed to state a claim for violation of the Sixth

7 Amendment.

8 E. Eighth Amendment

9 Plaintiff also alleges his rights under the Eighth Amendment have been violated. The

10 Eighth Amendment’s prohibition against cruel and unusual punishment protects convicted

11 prisoners. Bell v. Wolfish, 441 U.S. 520, 535 (1979); Graham, 490 U.S. at 395 n.10. Plaintiff

12 has not been convicted and is not a prisoner so the Eighth Amendment does not apply to his

13 claims in this action.

14 It is the Fourteenth Amendment that protects the rights of pretrial detainees. Bell, 441

15 U.S. at 545. “[U]nder the Due Process Clause, a detainee may not be punished prior to an

16 adjudication of guilt in accordance with due process of law.” Demery v. Arpaio, 378 F.3d 1020,

17 1029 (9th Cir. 2004) (quoting Bell, 441 U.S. at 535). During the period of detention prior to

18 trial, a pretrial detainee may be properly subject to the conditions of the jail so long as they do

19 not amount to punishment. Bell, 441 U.S. at 536–37.

20 “Pretrial detainees are entitled to ‘adequate food, clothing, shelter, sanitation, medical

21 care, and personal safety.’ ” Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir.

22 1996) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). To state a claim of

23 unconstitutional conditions of confinement against an individual defendant, a pretrial detainee

24 must allege facts that show: (i) the defendant made an intentional decision with respect to the

25 conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at

26 substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available

27 measures to abate that risk, even though a reasonable official in the circumstances would have

1 conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s

2 injuries. Gordon v. County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018).

3 In this instance, Plaintiff’s allegations do not implicate his conditions of confinement.

4 Plaintiff brings this actions against the court and the judge for actions taken in adjudicating his

5 criminal action. The allegations do not state a claim that the conditions under which Plaintiff is

6 being confined subject him to a substantial risk of serious harm that would violate the Fourteenth

7 Amendment. Plaintiff has failed to state a claim based on his conditions of confinement.

8 F. Judicial Immunity

9 Plaintiff has named Judge Reinhart, the judge presiding over his criminal proceedings as

10 a defendant in this action. Absolute judicial immunity is afforded to judges for acts performed

11 by the judge that relate to the judicial process. In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002),

12 as amended (Sept. 6, 2002). “This immunity reflects the long-standing ‘general principle of the

13 highest importance to the proper administration of justice that a judicial officer, in exercising the

14 authority vested in him, shall be free to act upon his own convictions, without apprehension of

15 personal consequences to himself.’ ” Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th

16 Cir. 2004) (quoting Bradley v. Fisher, 13 Wall. 335, 347 (1871)). This judicial immunity

17 insulates judges from suits brought under section 1983. Olsen, 363 F.3d at 923.

18 Absolute judicial immunity insulates the judge from actions for damages due to judicial

19 acts taken within the jurisdiction of the judge’s court. Ashelman v. Pope, 793 F.2d 1072, 1075

20 (9th Cir. 1986). “Judicial immunity applies ‘however erroneous the act may have been, and

21 however injurious in its consequences it may have proved to the plaintiff.’ ” Ashelman, 793

22 F.2d at 1075 (quoting Cleavinger v. Saxner, 474 U.S. 193 (1985)). However a judge is not

23 immune where he acts in the clear absence of jurisdiction or for acts that are not judicial in

24 nature. Ashelman, 793 F.2d at 1075. Judicial conduct falls within “clear absence of all

25 jurisdiction,” where the judge “acted with clear lack of all subject matter jurisdiction.” Stone v.

26 Baum, 409 F.Supp.2d 1164, 1174 (D. Ariz. 2005).

27 To determine if an act is judicial in nature, the court considers whether (1) the precise act

1 centered around a case then pending before the judge; and (4) the events at issue arose directly

2 and immediately out of a confrontation with the judge in his or her official capacity. Duvall v.

3 Cty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001), as amended on denial of reh’g (Oct. 11,

4 2001) (quoting Meek v. County of Riverside, 183 F.3d 962, 967 (9th Cir. 1999)).

5 Here, Plaintiff brings this action alleging that Judge Reinhart issued a warrant for his

6 arrest and has detained him during the pendency of his criminal proceedings. These are actions

7 that are clearly taken within the jurisdiction of Judge Reinhardt’s court and are judicial in nature.

8 Accordingly, Judge Reinhardt is entitled to judicial immunity for issuing the arrest warrant and

9 ordering Plaintiff to be detained during the criminal proceedings.

10 D. Municipal Liability

11 Plaintiff also names the Kings County Superior Court as a defendant. A municipality can

12 only be held liable for injuries caused by the execution of its policy or custom or by those whose

13 edicts or acts may fairly be said to represent official policy. Monell, 436 U.S. at 694. Generally,

14 to establish municipal liability, a plaintiff must show that a constitutional right was violated, the

15 municipality had a policy, that policy was deliberately indifferent to plaintiff’s constitutional

16 rights, and the policy was “the moving force” behind the constitutional violation. Bd. of Cty.

17 Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 400 (1997); Burke v. County of Alameda,

18 586 F.3d 725, 734 (9th Cir. 2009); Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175, 1185-86 (9th

19 Cir. 2002), overruled on other grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir.

20 2016). “The custom or policy must be a ‘deliberate choice to follow a course of action . . . made

21 from among various alternatives by the official or officials responsible for establishing final

22 policy with respect to the subject matter in question.’ ” Castro, 833 F.3d at 1075 (quoting

23 Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). The deliberate indifference standard

24 for municipalities is an objective inquiry. Castro, 833 F.3d at 1076.

25 Plaintiff has failed to state a claim that he has been subjected to a constitutional violation

26 and additionally the complaint is devoid of any allegations of custom or policy that would result

27 in the violation of Plaintiff’s constitutional rights. Plaintiff has failed to state a claim against the

1 E. Abstention

2 Finally, the Court finds that abstention is appropriate in this instance. Under principles of

3 comity and federalism, a federal court should not interfere with ongoing state criminal

4 proceedings by granting injunctive or declaratory relief except under special circumstances.

5 Younger v. Harris, 401 U.S. 37, 43-54 (1971). Younger abstention is required when: (1) state

6 proceedings, judicial in nature, are pending; (2) the state proceedings involve important state

7 interests; and (3) the state proceedings afford adequate opportunity to raise the constitutional

8 issue. Middlesex County Ethics Comm. V. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982);

9 Dubinka v. Judges of the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994). The rationale of

10 Younger applies throughout the appellate proceedings, requiring that state appellate review of a

11 state court judgment be exhausted before federal court intervention is permitted. Dubinka, 23

12 F.3d at 223.

13 This Court will not interfere in the on-going criminal proceedings currently pending

14 against Plaintiff in state court which may resolve the constitutional injury alleged. Plaintiff’s

15 complaint clearly states that his criminal proceedings are still ongoing in the Kings County

16 Superior Court and the records of the Kings County Superior Court show that Plaintiff is set to

17 have a trial by jury on September 21, 2020.2

18 F. Leave to Amend

19 Under Rule 15 of the Federal Rules of Civil Procedure leave to amend shall be freely

20 given when justice so requires. Fed. R. Civ. P. 15(a)(2). In determining whether to grant leave

21 to amend, the court considers five factors: “(1) bad faith; (2) undue delay; (3) prejudice to the

22 opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously amended

23 his complaint.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004); accord Madeja v.

24 Olympic Packers, LLC., 310 F.3d 628, 636 (9th Cir. 2002). The factors are not given equal

25 weight and futility alone is sufficient to justify the denial of a motion to amend. Washington v.

26 Lowe’s HIW Inc., 75 F.Supp.3d 1240, 1245 (N.D. Cal. 2014), appeal dismissed (Feb. 25, 2015).

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2 The Court notes that Plaintiff was originally set to proceed to trial in May 2020, and the trial has been continued

1 Here, Plaintiff is attempting to bring claims against Defendant Reinhardt who is entitled

2 to absolute judicial immunity from damages based on the allegations in the complaint and, due to

3 the pending criminal action, the Court finds that Younger abstention is appropriate. Plaintiff has

4 previously been provided with the legal standards that apply to his claims and granted leave to

5 amend. Plaintiff’s amended complaint failed to cure the deficiencies identified in the July 31,

6 2020 screening order. Finally, upon review of the original and the first amended complaint, the

7 Court finds that it would be futile to grant Plaintiff further leave to amend.

8 IV.

9 CONCLUSION AND RECOMMENDATION

10 Plaintiff’s first amended complaint fails to state any cognizable claims for a violation of

11 his federal rights. Plaintiff was previously notified of the applicable legal standards and the

12 deficiencies in his pleading, and despite guidance from the Court, Plaintiff’s first amended

13 complaint failed to correct the deficiencies in his pleading. Based upon the allegations in

14 Plaintiff’s original and first amended complaint, the Court is persuaded that Plaintiff is unable to

15 allege any additional facts that would support a claim for a violation of this federal rights, and

16 further amendment would be futile. See Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir.

17 2013) (“A district court may deny leave to amend when amendment would be futile.”) Based on

18 the nature of the deficiencies at issue, the Court finds that further leave to amend is not

19 warranted. Lopez, 203 F.3d at 1130; Noll v. Carlson, 809 F.2d 1446-1449 (9th Cir. 1987).

20 Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s first amended complaint

21 be DISMISSED WITHOUT LEAVE TO AMEND and this action be closed.

22 This findings and recommendations is submitted to the district judge assigned to this

23 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30)

24 days of service of this recommendation, Plaintiff may file written objections to this findings and

25 recommendations with the court. Such a document should be captioned “Objections to

26 Magistrate Judge’s Findings and Recommendations.” The district judge will review the

27 magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C).

wOAOe 4: OU UVM EMTALA MUO OP Ie OY VI te

1 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing

2 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

3

4 IT IS SO ORDERED. FA. ee

5 Dated: _ September 2, 2020 "

‘ UNITED STATES MAGISTRATE JUDGE

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