Myers v. Fresno County Jail

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 ANTHONY E. MYERS, Case No. 1:20-cv-00381-AWI-EPG

12 Plaintiff, FINDINGS AND RECOMMENDATION TO

DISMISS THIS ACTION FOR FAILURE TO

13 v. STATE A CLAIM

14 FRESNO COUNTY JAIL, et al., THIRTY (30) DAY DEADLINE

15 Defendants.

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17 I. INTRODUCTION

18 Anthony E. Myers (“Plaintiff”) is proceeding pro se and in forma pauperis in this civil

19 rights action pursuant to 42 U.S.C. § 1983. On March 13, 2020, Plaintiff commenced this action

20 by filing a complaint against Fresno County Jail, Fresno Police Department, Fresno

21 Sheriff/SERT, American Ambulance, and Community Hospital (collectively “Defendants”).

22 (ECF No. 1). On April 28, 2020, Plaintiff filed a first amended complaint (“FAC”). (ECF No. 4).

23 In the FAC, Plaintiff alleges that his right to a speedy trial has been violated, excessive force was

24 used in effectuating Plaintiff’s arrest, and while in detention unknown technology was used to

25 induce various bodily reactions in Plaintiff akin to assault and sexual assault.

26 The Court entered a screening order on August 10, 2020. (ECF No. 8). The Court found

27 that Plaintiff failed to state any cognizable claims and gave Plaintiff thirty days from the date of

service of the order to file a second amended complaint or to notify the Court that he wishes to

1 stand on the FAC, subject to the undersigned issuing findings and recommendations to the

2 assigned district judge consistent with the screening order. (ECF No. 8 at 12–14).1

3 On August 12, 2020, the Court received a “packet” of documents, the purpose of which

4 Plaintiff stated was to “amend and append to current filings.”2 (ECF No. 9 at 1). The Court notes

5 that although this packet was received after issuance of the August 10 screening order, it is

6 reasonable to assume that Plaintiff did not file the documents with the benefit of the legal

7 standards set forth in the screening order. The packet consists of, inter alia, a police event report,

8 various paperwork related to insurance claims, an automobile repair invoice, court documents

9 related to a Fresno County Superior Court case, letters written by Plaintiff to an insurance

10 company and a law firm, and copies of documents previously submitted to this Court.

11 The documents in the packet are generally not pertinent to the claims in the FAC and do

12 not alter the analysis set forth in the screening order. Accordingly, for the reasons described in

13 the screening order (ECF No. 8) and set forth below, the undersigned recommends that

14 Plaintiff’s case be dismissed for failure to state a claim.

15 II. SCREENING REQUIREMENT

16 The Court is required to screen complaints brought by prisoners3 seeking relief against a

17 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

18 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

19 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

20 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

21 § 1915A(b)(1), (2).

22 The Court may also screen a complaint brought in forma pauperis under 28 U.S.C.

23 § 1915. “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

24 court shall dismiss the case at any time if the court determines that . . . the action or appeal (i) is

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1 Page numbers refer to ECF page numbers stamped at the top of the page.

2 The Court notes that on the docket the packet of documents is inaccurately labeled as a second amended complaint.

27 3 In the instant case, Plaintiff was detained at the Fresno County Jail at the time the complaint and the FAC were

filed. Accordingly, the Court may screen the FAC pursuant to 28 U.S.C. § 1915A. See Olivas v. Nevada ex rel.

1 frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks

2 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

3 A complaint must contain “a short and plain statement of the claim showing that the

4 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

5 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

6 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

7 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

8 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 556 U.S. at 663

9 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal

10 conclusions are not. Iqbal, 556 U.S. at 678.

11 In determining whether a complaint states an actionable claim, the Court must accept the

12 allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 740

13 (1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v.

14 Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor, Jenkins

15 v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to less

16 stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342

17 (9th Cir. 2010) (holding pro se complaints should continue to be liberally construed after Iqbal).

18 III. SUMMARY OF PLAINTIFF’S COMPLAINT

19 In the FAC, Plaintiff alleges that a SERT officer used “‘pain compliance’ in the form of

20 elbow strikes and head butts in addition to double tossings in a ‘Rodney King styled’ beatdown”

21 when arresting Plaintiff without a warrant. (ECF No. 4 at 4). Plaintiff also alleges that a non-

22 SERT officer admitted to tasing, headbutting, and elbowing as part of “pain compliance.” (Id.).

23 Plaintiff appears to contend that he has not waived his right to a speedy trial.

24 The FAC further alleges that some unknown technology4 “forced dream induced

25 ejaculations called ‘Minds Eye,’ simulated anal penetration, induced erections, ‘so called’ ‘anal

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4 With respect to this unknown technology, Plaintiff directed the Court to take note that in 2012 the United States

27 Department of Justice issued standards that did not include “AM/FM digital distribution of simulated body

function.” (ECF No. 4 at 4). Plaintiff likened the technology to “marketed simulation technology known to offer

1 dilations,’ induced diarreah [sic], extreme cramps, disruption of breath and normal breathing,

2 chest pains[.]” (ECF No. 4 at 4).

3 IV. EVALUATION OF PLAINTIFF’S COMPLAINT

4 A. Habeas Corpus or Section 1983

5 The Court notes at the outset that is unclear what relief Plaintiff seeks in the instant

6 proceeding and whether Plaintiff intends to state a habeas claim. In the FAC, Plaintiff makes

7 references to both 42 U.S.C. § 1983 and 28 U.S.C. § 2241, the habeas corpus statute.

8 Federal law opens two main avenues to relief on complaints related

to imprisonment: a petition for habeas corpus, and a complaint

9 under the Civil Rights Act of 1871. Challenges to the validity of

any confinement or to particulars affecting its duration are the

10 province of habeas corpus; requests for relief turning on

circumstances of confinement may be presented in a § 1983 action.

11 Some cases are hybrids, with a prisoner seeking relief unavailable

in habeas, notably damages, but on allegations that not only

12 support a claim for recompense, but imply the invalidity either of

an underlying conviction or of a particular ground for denying

13 release short of serving the maximum term of confinement.

14 Muhammad v. Close, 540 U.S. 749, 750–51 (2004) (citations omitted).

15 “In cases where a prisoner’s section 1983 complaint evince[s] a clear intention to state a

16 habeas claim, [the Ninth Circuit has] said that the district court should treat the complaint as a

17 habeas petition.” Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (citing Padilla

18 v. Ackerman, 460 F.2d 477, 478 (9th Cir.1972); Bennett v. Allen, 396 F.2d 788, 790 (9th

19 Cir.1968)). “When the intent to bring a habeas petition is not clear, however, the district court

20 should not convert a defective section 1983 claim into a habeas petition.” Trimble, 49 F.3d at

21 586. As noted above, the relief that Plaintiff seeks in the instant proceeding is unclear and

22 Plaintiff makes references to both § 1983 and the federal habeas corpus statute. Accordingly, the

23 Court declines to convert the FAC into a habeas petition.

24 The Court further notes that a jurisdictional issue may exist with claims that Plaintiff may

25 state in a § 1983 action. In Heck v. Humphrey, 512 U.S. 477, 486–87 (1994), the United States

26 Supreme Court held that to recover damages for “harm caused by actions whose unlawfulness

27 would render a conviction or sentence invalid,” a § 1983 plaintiff must prove that the conviction

1 laid out in Heck preserves the rule that claims which, if successful, would necessarily imply the

2 invalidity of a conviction or sentence, must be brought by way of a petition for writ of habeas

3 corpus. Muhammad, 540 U.S. at 750–751.

4 Here, it appears that Plaintiff may be involved in criminal proceedings related to the

5 allegedly unlawful arrest at issue in the FAC. Plaintiff also appears to allege that his right to a

6 speedy trial has been violated. If success on Plaintiff’s claims would necessarily imply the

7 invalidity of a conviction or sentence, then: (1) the claim must be brought by way of a petition

8 for writ of habeas corpus; and (2) would be subject to the favorable termination rule, which

9 requires the conviction or sentence to have been reversed, expunged, or otherwise invalidated,

10 before Plaintiff could recover damages. Also, if a plaintiff files any “claim related to rulings that

11 will likely be made in a pending or anticipated criminal trial[,] it is within the power of the

12 district court, and in accord with common practice, to stay the civil action until the criminal case

13 or the likelihood of a criminal case is ended.” Wallace v. Kato, 549 U.S. 384, 393–94 (2007).

14 B. Section 1983

15 The Civil Rights Act under which this action was filed provides:

16 Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

17 District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction

18 thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party

19 injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

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21 42 U.S.C. § 1983.

22 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a

23 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386,

24 393–94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). See also Chapman v.

25 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d

26 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v.

27 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

1 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under

2 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or

3 federal law. Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh v.

4 Cty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state law”).

5 A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he does an

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

7 legally required to do that causes the deprivation of which complaint is made.’” Preschooler II v.

8 Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588

9 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established when an

10 official sets in motion a ‘series of acts by others which the actor knows or reasonably should

11 know would cause others to inflict’ constitutional harms.” Preschooler II, 479 F.3d at 1183

12 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard

13 ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 637 F.2d

14 1350, 1355 (9th Cir. 1981); Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).

15 Additionally, a plaintiff must demonstrate that each named defendant personally

16 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676–77. In other words, there must

17 be an actual connection or link between the actions of the defendants and the deprivation alleged

18 to have been suffered by Plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S.

19 658, 691, 695 (1978).

20 Supervisory personnel are generally not liable under § 1983 for the actions of their

21 employees under a theory of respondeat superior and, therefore, when a named defendant holds

22 a supervisory position, the causal link between him and the claimed constitutional violation must

23 be specifically alleged. Iqbal, 556 U.S. at 676–77; Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir.

24 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a claim for relief

25 under § 1983 based on a theory of supervisory liability, Plaintiff must allege some facts that

26 would support a claim that the supervisory defendants either: personally participated in the

27 alleged deprivation of constitutional rights; knew of the violations and failed to act to prevent

1 of constitutional rights' and is ‘the moving force of the constitutional violation.’” Hansen v.

2 Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations omitted); Taylor v. List, 880 F.2d

3 1040, 1045 (9th Cir. 1989). For instance, a supervisor may be liable for his “own culpable action

4 or inaction in the training, supervision, or control of his subordinates,” “his acquiescence in the

5 constitutional deprivations of which the complaint is made,” or “conduct that showed a reckless

6 or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 630, 646

7 (9th Cir. 1991) (internal citations, quotation marks, and alterations omitted).

8 C. Municipal Liability

9 A county or other local governmental entity may be liable for a constitutional deprivation

10 where the plaintiff can “satisfy the requirements for municipality liability established by Monell

11 and its progeny.” Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1247 (9th Cir. 2016) (citing

12 Monell v. Dep’t of Soc. Servs. Of the City of New York, 436 U.S. 658 (1978)). Under Monell,

13 an entity defendant cannot be held liable for a constitutional violation solely because it employs

14 a tortfeasor 436 U.S. at 691. An entity defendant can only be held liable for injuries caused by

15 the execution of its policy or custom or by those whose edicts or acts may fairly be said to

16 represent official policy. Id. at 694. “In addition, a local governmental entity may be liable if it

17 has a ‘policy of inaction and such inaction amounts to a failure to protect constitutional rights.’”

18 Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (quoting Oviatt v. Pearce, 954

19 F.2d 1470, 1474 (9th Cir. 1992)).

20 A “policy” is a “deliberate choice to follow a course of action . . . made from among

21 various alternatives by the official or officials responsible for establishing final policy with

22 respect to the subject matter in question.” Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). A

23 “custom” is a “widespread practice that, although not authorized by written law or express

24 municipal policy, is so permanent and well-settled as to constitute a custom or usage with the

25 force of law.” St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Los Angeles Police Protective

26 League v. Gates, 907 F.2d 879, 890 (9th Cir. 1990). “Since Iqbal, courts have repeatedly rejected

27 conclusory Monell allegations that lack factual content from which one could plausibly infer

1 (affirming district court’s dismissal of Monell claim based only on conclusory allegations and

2 lacking factual support).

3 “Private actors have been found to act under color of state law where they contract with

4 the state to provide a service that the state bears ‘an affirmative obligation to provide.’” Cox v.

5 California Forensic Med. Grp., 2015 WL 237905, at *2 (N.D. Cal., Jan. 14, 2015) (quoting West

6 v. Atkins, 487 U.S. 42, 55–56 (1988) (finding private doctor acted under color of state law in

7 providing medical care to inmates under a contract with prison because Eighth Amendment

8 requires prison to provide such care to inmates)). Additionally, Monell liability extends to § 1983

9 suits against private entities that are acting under color of state law. Tsao v. Desert Palace, Inc.,

10 698 F.3d 1128, 1139 (9th Cir. 2012).

11 D. Use of Excessive Force During Arrest

12 A § 1983 claim for excessive use of force during an arrest is analyzed under the Fourth

13 Amendment’s objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 395–99

14 (1989). “The question is whether the officers’ actions are objectively reasonable in light of the

15 facts and circumstances confronting them, without regard to their underlying intent or

16 motivation.” Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018) (quoting Graham,

17 490 U.S. at 397). To determine whether the force used is “objectively reasonable,” the Court

18 balances “the nature and quality of the intrusion on the individual’s Fourth Amendment interests

19 against the countervailing governmental interests at stake.” Graham, 490 U.S. at 397. “The

20 essence of the Graham objective reasonableness analysis is that the force which was applied

21 must be balanced against the need for that force: it is the need for force which is at the heart of

22 the Graham factors.” Headwaters Forest Def. v. Cty. of Humboldt, 276 F.3d 1125, 1130 (9th Cir.

23 2002), as amended (Jan. 30, 2002) (quoting Liston v. County of Riverside, 120 F.3d 965, 976

24 (9th Cir. 1997) (internal quotation marks and brackets omitted).

25 A court must “first assess the quantum of force used to arrest the plaintiff by considering

26 the type and amount of force inflicted.” Drummond v. City of Anaheim, 343 F.3d 1052, 1056

27 (9th Cir. 2003) (internal quotation marks and brackets omitted). Second, a court balances the

1 issue, whether the suspect poses an immediate threat to the safety of the officers or others, and

2 whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S.

3 at 396. Using these factors, a court must determine “whether the force employed was greater

4 than is reasonable under the circumstances.” Drummond, 343 F.3d at 1058.

5 The FAC alleges that a SERT officer used “‘pain compliance’ in the form of elbow

6 strikes and head butts in addition to double tossings in a ‘Rodney King styled’ beatdown” when

7 arresting Plaintiff without a warrant. (ECF No. 4 at 4). Plaintiff also alleges that a non-SERT

8 officer admitted to tasing, headbutting, and elbowing as part of “pain compliance.” (Id.).

9 Plaintiff appears to bring a claim against the Fresno Police Department and the Fresno

10 County Sheriff’s Office for use of excessive force during Plaintiff’s arrest. No individuals are

11 named as defendants. While Plaintiff’s allegations appear sufficiently specific to show that force

12 was used and could have been excessive, see Byrd, 885 F.3d at 642–43 (finding plaintiff stated

13 claim for excessive force by alleging defendant police officers “beat the crap out of” plaintiff),

14 there are no specific allegations suggesting that excessive force was used pursuant to an official

15 municipal policy. Accordingly, Plaintiff has failed to state a claim against any entity defendants.

16 E. Speedy Trial

17 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

18 trial[.]” U.S. Const. amend. VI. A speedy trial is a fundamental right guaranteed by the Sixth

19 Amendment and imposed upon the states by the Due Process Clause of the Fourteenth

20 Amendment. Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). The Court must balance four

21 factors in determining whether there has been a violation of the right to a speedy trial: (1) the

22 length of the delay; (2) the reason for the delay; (3) whether the defendant asserted the right to a

23 speedy trial; and (4) whether the defendant suffered prejudice as a result of the delay. Dogget v.

24 United States, 505 U.S. 647, 651 (1992) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). No

25 one factor is necessary or sufficient and there is no affirmative demonstration of prejudice

26 necessary to prove a violation of the right to a speedy trial; instead, the four related factors “must

27 be considered together with such other circumstances as may be relevant.” Moore v. Arizona,

1 The FAC does not contain sufficient facts to state that a speedy trial violation has

2 occurred. The FAC has no factual allegations regarding the length and reasons for delay, whether

3 Plaintiff asserted his right to a speedy trial, and the resulting prejudice.5

4 F. Use of Technology to Induce Physical Reactions

5 “The status of the detainees determines the appropriate standard

for evaluating conditions of confinement.” Gary H. v. Hegstrom,

6 831 F.2d 1430, 1432 (9th Cir. 1987). “Due process requires that a

pretrial detainee not be punished. A sentenced inmate, on the other

7 hand, may be punished, although that punishment may not be

‘cruel and unusual’ under the Eighth Amendment.” Bell v. Wolfish,

8 441 U.S. 520, 537 n.16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

9 “For a particular governmental action to constitute punishment, (1)

that action must cause the detainee to suffer some harm or

10 ‘disability,’ and (2) the purpose of the governmental action must

be to punish the detainee.” Demery v. Arpaio, 378 F.3d 1020, 1029

11 (9th Cir. 2004) (citing Bell, 441 U.S. at 538, 99 S.Ct. 1861). “[T]o

constitute punishment, the harm or disability caused by the

12 government’s action must either significantly exceed, or be

independent of, the inherent discomforts of confinement.” Id. at

13 1030 (citation omitted). Once harm is established, the court

considers “whether this harm is imposed ‘for the purpose of

14 punishment or whether it is but an incident of some other

legitimate governmental purpose.’ ” Id. (quoting Bell, 441 U.S. at

15 538, 99 S.Ct. 1861).

16 Vazquez v. Cty. of Kern, 949 F.3d 1153, 1163 (9th Cir. 2020).

17 “Most cases that involve unwanted sexual contact or harassment

by public officials have been analyzed under the substantive due

18 process right to be free from violations of bodily integrity under

the Fourteenth Amendment.” Fontana v. Haskin, 262 F.3d 871,

19 881–82 n.6 . (9th Cir. 2001). “Under the Fourteenth Amendment’s

substantive due process prong, we use the ‘shocks the conscience’

20 test.” Id. at 882 n.7 (citing Cty. of Sacramento v. Lewis, 523 U.S.

833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). “The

21 threshold question is ‘whether the behavior of the governmental

officer is so egregious, so outrageous, that it may fairly be said to

22 shock the contemporary conscience.’” Id. (quoting Sacramento,

523 U.S. at 848 n. 8, 118 S.Ct. 1708).

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24 Vazquez, 949 F.3d at 1162 (footnote omitted).

25 ///

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5 As set forth in section IV(A), supra, a jurisdictional issue may exist with any speedy trial claim that Plaintiff may

state. See Heck, 512 U.S. 477; Muhammad, 540 U.S. 749. Further, it is unclear whether monetary damages pursuant

27 to 42 U.S.C. § 1983 are an available remedy for a violation of the right to a speedy trial. See Betterman v. Montana,

136 S. Ct. 1609, 1615 (2016) (“The sole remedy for a violation of the speedy trial right [is] dismissal of the

1 Here, the allegations of the FAC underlying Plaintiff’s claims regarding his detention are

2 factually frivolous. “[A] court may dismiss a claim as factually frivolous only if the facts alleged

3 are ‘clearly baseless,’ a category encompassing allegations that are ‘fanciful,’ ‘fantastic,’ and

4 ‘delusional.’” Denton v. Hernandez, 504 U.S. 25, 32–33 (1992) (quoting Neitzke v. Williams,

5 490 U.S. 319, 327, 325, 328 (1989)). “As those words suggest, a finding of factual frivolousness

6 is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible,

7 whether or not there are judicially noticeable facts available to contradict them.” Denton, 504

8 U.S. at 33. The facts alleged by Plaintiff—that some unknown technology (similar to marketed

9 simulation technology known to offer control over friends) was used to induce various bodily

10 reactions (ejaculation, erection, anal dilations, diarrhea, extreme cramps, disruption of breath,

11 chest pains) in Plaintiff—are patently incredible.

12 V. CONCLUSION AND RECOMMENDATION

13 The Court has screened the FAC and finds that it fails to state any cognizable claims. It is

14 unclear what relief Plaintiff seeks in the instant proceeding and whether Plaintiff intends to state

15 a habeas claim. Additionally, any § 1983 claims may be barred by Heck v. Humphrey, 512 U.S.

16 477 (1994).

17 The Court previously explained to Plaintiff the deficiencies in the FAC, provided

18 Plaintiff with relevant legal standards, and provided Plaintiff an opportunity to amend his

19 complaint. Although Plaintiff filed a packet of documents to “amend and append to current

20 filings,” the documents are not particularly pertinent to the claims set forth in the FAC.

21 Furthermore, Plaintiff elected not to file a second amended complaint with the benefit of the

22 information provided by the Court in the previous screening order. Therefore, the undersigned

23 finds that further leave to amend would be futile.

24 Based on the foregoing, the undersigned HEREBY RECOMMENDS that this action be

25 dismissed for failure to state a claim.

26 This Findings and Recommendation is submitted to the assigned United States District

27 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local

1 | THIRTY (30) days after service of the Findings and Recommendation, Plaintiff may file written

2 | objections with the court and serve a copy on all parties. Such a document should be captioned

3 | “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned United States

4 | District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.

5 | § 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified

6 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d

7 | 834, 839 (th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

8

9 IT IS SO ORDERED.

10} Dated: _ October 29, 2020 [Jee ey —

ll UNITED STATES MAGISTRATE JUDGE

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