(PC)Ira Pernell Callahan v. Unknown

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 IRA PERNELL CALLAHAN, Case No. 1:22-cv-00221-BAM (PC)

12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO

RANDOMLY ASSIGN DISTRICT JUDGE TO

13 v. ACTION

14 UNKNOWN, FINDINGS AND RECOMMENDATIONS TO

DISMISS ACTION, WITH PREJUDICE, FOR

15 Defendant. FAILURE TO STATE A CLAIM, FAILURE

TO OBEY COURT ORDER, AND FAILURE

16 TO PROSECUTE

17 (ECF No. 11)

18 FOURTEEN (14) DAY DEADLINE

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20 I. Background

21 Plaintiff Ira Pernell Callahan (“Plaintiff”) is a state prisoner proceeding pro se and in

22 forma pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a

23 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

24 On March 9, 2022, the Court issued a screening order granting Plaintiff leave to file a first

25 amended complaint or a notice of voluntary dismissal within thirty (30) days. (ECF No. 11.) The

26 Court expressly warned Plaintiff that the failure to comply with the Court’s order would result in

27 a recommendation for dismissal of this action, with prejudice, for failure to obey a court order

28 and for failure to state a claim. (Id. at 12.) The deadline has expired, and Plaintiff has failed to

1 file an amended complaint or otherwise communicate with the Court.

2 II. Failure to State a Claim

3 A. Screening Requirement

4 The Court is required to screen complaints brought by prisoners seeking relief against a

5 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.

6 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous

7 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary

8 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).

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

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

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

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

13 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as

14 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,

15 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

16 To survive screening, Plaintiff’s claims must be facially plausible, which requires

17 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable

18 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret

19 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully

20 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility

21 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

22 B. Plaintiff’s Allegations

23 Plaintiff is currently housed at North Kern State Prison (“NKSP”), where the events in the

24 complaint are alleged to have occurred. Plaintiff does not name any defendants. The complaint

25 is in letter form and addressed to “To Whom it May Concern” and appears to be on behalf of all

26 inmates. In substance, Plaintiff alleges as follows.

27 Plaintiff complains of safety, policies and protocols at NKSP. Plaintiff complains of

28 exposure by inmates to the “Ibercrombie” virus, Delta variant and Covid19 on December 25,

1 2021, by an unknown correctional officer on the third watch. Inmates are put at serious risk due

2 to exposure and are not being allowed to properly social distance in Dorm C-west, which was

3 filled to the maximum capacity of 200 inmates. It should have been half that due to the Covid 19

4 protocol.

5 Medical staff and correctional officers neglect thorough medical evaluations for inmates

6 and integrate inmates into main population. They do not properly test, diagnose or produce test

7 results before placing inmates in their dorms and quarantine housing units without proper testing,

8 diagnosis or test results. Being placed on quarantine affects prisoners’ release dates, parole dates,

9 visitation, commissionary and medical visits and extends their period of incarceration and violates

10 Due Process.

11 The overcrowding and the Covid 19 protocol deprive prisoners of the ability to socially

12 distance themselves which causes an unsafe environment. Many prisoners and staff have been

13 diagnosed with the many Covid 19 viruses and have been quarantined, but Medical has not yet

14 provided a solution that prevents prisoners and staff who have been diagnosed from coming in

15 contact with other prisoners. Prisoners have a serious medical need of Covid 19 testing, and

16 officials show deliberate indifference to prisoner serious medical needs of Covid 19 testing, social

17 distancing, and proper quarantine. Plaintiff states that on December 25, 2021, an officer/staff

18 tested positive after working in the dorm, but inmates were not swabbed. On January 2, 2022, an

19 inmate was removed from Plaintiff’s dorm who tested positive for Covid, and the inmates were

20 not swabbed. On January 4, 2022, people inside his dorm were starting to feel sick, but they were

21 not swabbed.

22 C. Discussion

23 Plaintiff’s complaint fails to comply with Federal Rules of Civil Procedure 8 and 10 and

24 fails to state a cognizable claim under 42 U.S.C. § 1983.

25 1. Plaintiff Cannot Represent Other Inmates

26 It appears that Plaintiff is seeking to bring this action on behalf of other inmates. A pro se

27 inmate cannot represent anyone other than himself in a conditions of confinement suit. “A

28 litigant appearing in propria persona has no authority to represent anyone other than himself.”

1 Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962); see also McShane v. United States, 366

2 F.2d 286, 288 (9th Cir. 1966) (privilege to appear without counsel is personal to the litigant).

3 “Although a non-attorney may appear in propria persona in his own behalf, that privilege is

4 personal to him. He has no authority to appear as an attorney for others than himself.” C.E. Pope

5 Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir. 1987) (citations omitted). “[A]n inmate does not

6 have standing to sue on behalf of his fellow prisoners. Rather, the prisoner must allege a personal

7 loss and seek to vindicate a deprivation of his own constitutional rights.” Weaver v. Wilcox, 650

8 F.2d 22, 27 (3rd Cir. 1981) (citations omitted). Thus, “[i]t is plain error to permit [an] imprisoned

9 litigant who is unassisted by counsel to represent his fellow inmates in a class action.” Oxendine

10 v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (citation omitted).

11 For these reasons, the Court must construe this action as an individual civil rights suit

12 brought by Plaintiff alone.

13 2. Federal Rule of Civil Procedure 8

14 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain

15 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).

16 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause

17 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678

18 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a

19 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

20 at 570). While factual allegations are accepted as true, legal conclusions are not. Id.; see also

21 Twombly, 550 U.S. at 556–57.

22 Although Plaintiff's complaint is relatively short, it is not a plain statement of his claims.

23 As a basic matter, the complaint does not clearly state what happened, when it happened or who

24 was involved. Plaintiff’s allegations must be based on facts as to what happened and not

25 conclusions. Plaintiff does not identify particular persons in the alleged wrongful acts and does

26 not identify what those persons did or did not do which violated Plaintiff’s rights.

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1 3. Federal Rule of Civil Procedure 10

2 Plaintiff submitted his complaint in the form of a letter that was addressed “[t]o whom it

3 may concern.” Because Plaintiff styled his complaint as a letter, the complaint does not have a

4 caption that contains the names of the defendants discussed in the body of the complaint, in

5 violation of Rule 10(a). See Fed. R. Civ. P. 10(a) (Rule 10(a) requires that plaintiffs include the

6 names of all parties in the caption of the complaint). The Court cannot have the complaint served

7 on any of the parties discussed in the body of the Complaint. See Soto v. Bd. of Prison Term, No.

8 CIV S-06-2502 RRB DAD P, 2007 WL 2947573, at *2 (E.D. Cal. Oct. 9, 2007) (The Court

9 cannot order service of the Complaint without the names of the parties included in the caption of

10 the Complaint). Rule 10 of the Federal Rules of Civil Procedure requires, among other things,

11 that a complaint (a) state the names of “all the parties” in the caption; and (b) state a party’s

12 claims in sequentially “numbered paragraphs, each limited as far as practicable to a single set of

13 circumstances.” Fed. R. Civ. P. 10. Plaintiff's complaint is subject to dismissal on this basis

14 alone. See Martinez v. Davey, No. 16-cv-1658-AWI-MJS (PC), 2018 WL 898153, at *5 (E.D.

15 Cal. Feb. 15, 2018) (dismissing, among other reasons, because “Plaintiff makes allegations

16 against numerous non-party individuals not named in the caption of the complaint” in violation of

17 Rule 10(a)).

18 4. Linkage Requirement

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

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

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

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

22 party injured in an action at law, suit in equity, or other proper proceeding for

redress.

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24 42 U.S.C. § 1983.

25 The statute plainly requires that there be an actual connection or link between the actions

26 of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v.

27 Dep’t of Soc. Servs., 436 U.S. 658, (1978); Rizzo v. Goode, 423 U.S. 362, (1976). The Ninth

28 Circuit has held that “[a] person ‘subjects another to the deprivation of a constitutional right,

1 within the meaning of section 1983, if he does an affirmative act, participates in another’s

2 affirmative acts or omits to perform an act which he is legally required to do that causes the

3 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

4 Plaintiff fails to identify any defendant and therefore fails to link each defendant to any

5 alleged wrongful conduct. Plaintiff cannot pursue claims against “medical staff” or “correctional

6 officers.” Plaintiff must name individuals and link that person to alleged wrongful conduct. In

7 order to state a claim for relief under section 1983, plaintiff must link each named defendant,

8 including Doe Defendants, with some affirmative act or omission that demonstrates a violation of

9 Plaintiff's federal rights.

10 5. Supervisor Liability

11 Insofar as Plaintiff is attempting to sue any defendant, based solely upon his or her

12 supervisory role, he may not do so. Liability may not be imposed on supervisory personnel for

13 the actions or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556

14 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v.

15 City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th

16 Cir. 2002).

17 Supervisors may be held liable only if they “participated in or directed the violations, or

18 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045

19 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v.

20 Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Supervisory liability may also exist without any

21 personal participation if the official implemented “a policy so deficient that the policy itself is a

22 repudiation of the constitutional rights and is the moving force of the constitutional violation.”

23 Redman v. Cty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations

24 marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970).

25 To prove liability for an action or policy, the plaintiff “must . . . demonstrate that his

26 deprivation resulted from an official policy or custom established by a . . . policymaker possessed

27 with final authority to establish that policy.” Waggy v. Spokane Cty. Wash., 594 F.3d 707, 713

28 (9th Cir. 2010). When a defendant holds a supervisory position, the causal link between such

1 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.

2 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

3 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in

4 civil rights violations are not sufficient. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.

5 1982).

6 6. Deliberate Indifference to Conditions of Confinement

7 Plaintiff presents his Eighth Amendment claims as conditions of confinement claims

8 rather than a deliberate indifference to serious medical needs.1 He challenges the spread of

9 COVID due to the overcrowded conditions and movement of inmates.

10 Conditions of confinement may, consistent with the Constitution, be restrictive and harsh.

11 See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 1041, 1045

12 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. Gardner, 986 F.2d

13 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, provide prisoners with

14 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy,

15 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor,

16 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); Hoptowit v.

17 Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir.

18 1981).

19 Two requirements must be met to show an Eighth Amendment violation. Farmer, 511

20 U.S. at 834. “First, the deprivation must be, objectively, sufficiently serious.” Id. (internal

21 quotation marks and citation omitted). Second, “prison officials must have a sufficiently culpable

22 state of mind,” which for conditions of confinement claims, “is one of deliberate indifference.”

23 Id. (internal quotation marks and citation omitted). Prison officials act with deliberate

24 indifference when they know of and disregard an excessive risk to inmate health or safety. Id. at

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1 Plaintiff’s allegations do not demonstrate that he is challenging any medical care provided. Plaintiff fails to allege

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facts about his medical care which demonstrate deliberate indifference. Deliberate indifference is shown by “(a) a

purposeful act or failure to respond to a prisoner’s pain or possible medical need, and (b) harm caused by the

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indifference.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). The requisite state of mind is one of

subjective recklessness, which entails more than ordinary lack of due care. Snow v. McDaniel, 681 F.3d 978, 985

28 (9th Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014).

1 837. The circumstances, nature, and duration of the deprivations are critical in determining

2 whether the conditions complained of are grave enough to form the basis of a viable Eighth

3 Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). Mere negligence on the

4 part of a prison official is not sufficient to establish liability, but rather, the official’s conduct

5 must have been wanton. Farmer, 511 U.S. at 835; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.

6 1998).

7 Extreme deprivations are required to make out a conditions of confinement claim, and

8 only those deprivations denying the minimal civilized measure of life’s necessities are

9 sufficiently grave to form the basis of an Eighth Amendment violation. Farmer, 511 U.S. at 834;

10 Hudson v. McMillian, 503 U.S. 1, 9 (1992). The circumstances, nature, and duration of the

11 deprivations are critical in determining whether the conditions complained of are grave enough to

12 form the basis of a viable Eighth Amendment claim. Johnson, 217 F.3d at 731. Second, the

13 prison official must “know[ ] of and disregard[ ] an excessive risk to inmate health or safety. . . .”

14 Farmer, 511 U.S. at 837. Thus, a prison official may be held liable under the Eighth Amendment

15 for denying humane conditions of confinement only if he knows that inmates face a substantial

16 risk of harm and disregards that risk by failing to take reasonable measures to abate it. Id. at 837–

17 45.

18 COVID-19 poses a substantial risk of serious harm. See Plata v. Newsom, 445 F. Supp.

19 3d 557, 559 (N.D. Cal. Apr. 17, 2020) (“[N]o one questions that [COVID-19] poses a substantial

20 risk of serious harm” to prisoners.). However, in order to state a cognizable Eighth Amendment

21 claim, Plaintiff must provide more than generalized allegations that the “medical staff” and

22 “correctional officers” have not done enough regarding overcrowding or prison movement or

23 housing assignment to control the spread. See Booth v. Newsom, No. 2:20-cv-1562 AC P, 2020

24 WL 6741730, at *3 (E.D. Cal. Nov. 17, 2020); see Blackwell v. Covello, No. 2:20-CV-1755 DB

25 P, 2021 WL 915670, at *3 (E.D. Cal. Mar. 10, 2021) (failure to state a claim against warden for

26 failure to adequately control the spread of COVID-19 in the prison); Benitez v. Sierra

27 Conservation Ctr., Warden, No. 1:21-CV-00370 BAM (PC), 2021 WL 4077960, at *5 (E.D. Cal.

28 Sept. 8, 2021), report and recommendation adopted, No. 1:21-CV-00370 NONE BAM (PC),

1 2021 WL 4593841 (E.D. Cal. Oct. 6, 2021) (Failed to state a claim on allegations that

2 overcrowding/lack of distance between inmates has exacerbated the conditions leading to

3 transmission of COVID. Plaintiff alleges that there is no way to socially distance, among other

4 conditions.); Sanford v. Eaton, No. 1:20-CV-00792 BAM (PC), 2021 WL 3021447, at *7 (E.D.

5 Cal. July 16, 2021), report and recommendation adopted in part, rejected in part, No. 1:20-CV-

6 00792 NONE BAM (PC), 2022 WL 168530 (E.D. Cal. Jan. 19, 2022 (in order to state a

7 cognizable Eighth Amendment claim against the warden, associate wardens and any other

8 defendants named, Plaintiff must provide more than generalized allegations that the warden,

9 associate wardens and other defendants have not done enough regarding overcrowding to control

10 the spread.); Fernandez v. Gamboa, No. 21-CV-01748 JLT BAM (PC), 2022 WL 658590, at *8

11 (E.D. Cal. Mar. 4, 2022) (the actions of Defendants may not have been effective or a “perfect

12 response,” but the numerous efforts undertaken demonstrate that Defendants were engaged in

13 active conduct to manage the spread of the virus.)

14 The Court notes that overcrowding, by itself, is not a constitutional violation. Doty v.

15 County of Lassen, 37 F.3d 540, 545 n.1 (9th Cir. 1994); Hoptowit v. Ray, 682 F.2d at 1248–49

16 (noting that overcrowding itself not Eighth Amendment violation but can lead to specific effects

17 that might violate Constitution), abrogated in part on other grounds by Sandin v. Conner, 515

18 U.S. 472 (1995); see Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 471 (9th Cir. 1989)

19 (allegations of prison overcrowding alone are insufficient to state a claim under the Eighth

20 Amendment.); see also Rhodes v. Chapman, 452 U.S. at 348–49 (double-celling of inmates by

21 itself does not inflict unnecessary or wanton pain or constitute grossly disproportionate

22 punishment in violation of Eighth Amendment). An overcrowding claim is cognizable only if the

23 plaintiff alleges that crowding has caused an increase in violence, has reduced the provision of

24 other constitutionally required services, or has reached a level rendering the institution no longer

25 fit for human habitation. See Balla, 869 F.2d at 471; see, e.g., Akao v. Shimoda, 832 F.2d 119,

26 120 (9th Cir. 1987) (per curiam) (as amended) (reversing district court’s dismissal of claim that

27 overcrowding caused increased stress, tension, and communicable disease among inmate

28 population); Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984) (affirming that Eighth

1 Amendment violation may occur as result of overcrowded prison conditions causing increased

2 violence, tension, and psychiatric problems).

3 Plaintiff alleges that the overcrowding has exacerbated the conditions leading to

4 transmission of COVID. Plaintiff alleges that there is no way to socially distance, among other

5 problems. The Court recognizes that “[p]risons present unique concerns regarding the spread of

6 this virus; by their very nature, prisons are confined spaces unsuited for ‘social distancing.’”

7 Evdokimow v. Doll, No. 4:21-CV-00261, 2021 WL 767554, at *6 (M.D. Pa. Feb. 26, 2021).

8 Nevertheless, CDC guidelines specifically contemplate that individuals will be confined within

9 prisons during the duration of this pandemic. See Interim Guidance on Management of

10 Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for

11 Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-

12 ncov/community/correction-detention/guidance-correctional-detention.html (last visited April 22,

13 2022).

14 The transmissibility of the COVID-19 virus in conjunction with Plaintiff's living

15 conditions, which he alleges were overcrowded, among other ills, are sufficient to satisfy the

16 objective prong, i.e., that Plaintiff was “incarcerated under conditions posing a substantial risk of

17 serious harm.” The pertinent question in determining whether Plaintiff states a claim is whether

18 unnamed defendants’ actions demonstrated deliberate indifference to that risk of harm. The key

19 inquiry is not whether the defendants perfectly responded, complied with every CDC guideline,

20 or whether their efforts ultimately averted the risk; instead, the key inquiry is whether they

21 “responded reasonably to the risk.” See Stevens v. Carr, No. 20-C-1735, 2021 WL 39542, at *4

22 (E.D. Wis. Jan. 5, 2021); accord Benitez, v. Sierra Conservation Center, 1:21-CV-00370 BAM

23 (PC), 2021 WL 4077960, at *5 (E.D. Cal. Sept. 8, 2021) (same); Sanford v. Eaton, No. 1:20-CV-

24 00792 BAM (PC), 2021 WL 3021447, at *8 (E.D. Cal. July 16, 2021) (same); Fernandez v.

25 Gamboa, No. 21-CV-01748 JLT BAM (PC), 2022 WL 658590, at *8 (E.D. Cal. Mar. 4, 2022)

26 (same).

27 Plaintiff finds fault with how the “medical staff” and “corrections staff” responded.

28 Plaintiff does not adequately allege who and how they were deliberately indifferent to the spread

1 of the disease. The actions of any purported defendant need not be a “perfect response.” There

2 appears to have been efforts undertaken to manage the spread of the virus. Plaintiff must allege

3 factual support to show that any purported defendant disregarded a known risk or failed to take

4 any steps to address the risk. Wilson, 961 F.3d at 843 (6th Cir. 2020); Sanford v. Eaton, No.

5 1:20-CV-00792 BAM (PC), 2021 WL 3021447, at *8 (E.D. Cal. July 16, 2021) (failure to state a

6 claim where defendants were trying “alternatives” to manage the situation.); Benitez, v. Sierra

7 Conservation Center, 1:21-CV-00370 BAM (PC), 2021 WL 4077960, at *5 (E.D. Cal. Sept. 8,

8 2021) (same).

9 As stated above, Plaintiff failed to name defendants and provide factual support of what

10 each defendant did or did not do which allegedly violated Plaintiff’s constitutional rights.

11 7. State Law Violations

12 To the extent that purported defendants have not complied with applicable state statutes or

13 prison regulations, these deprivations do not support a claim under § 1983. Section 1983 only

14 provides a cause of action for the deprivation of federally protected rights. See, e.g., Nible v.

15 Fink, 828 Fed. Appx. 463 (9th Cir. 2020) (violations of Title 15 of the California Code of

16 Regulations do not create private right of action); Nurre v. Whitehead, 580 F.3d 1087, 1092 (9th

17 Cir. 2009) (section 1983 claims must be premised on violation of federal constitutional right);

18 Prock v. Warden, No. 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at *11–12 (E.D. Cal. Oct. 8,

19 2013) (noting that several district courts have found no implied private right of action under title

20 15 and stating that “no § 1983 claim arises for [violations of title 15] even if they occurred.”);

21 Parra v. Hernandez, No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. Cal. Nov. 13, 2009)

22 (granting motion to dismiss prisoner’s claims brought pursuant to Title 15 of the California Code

23 of Regulations); Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW (PC), 2009 WL

24 1211372, at *9 (E.D. Cal. May 1, 2009) (holding that there is no private right of action under

25 Title 15 of the California Code of Regulations). “To the extent that the violation of a state law

26 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the

27 federal Constitution, [s]ection 1983 offers no redress.” Sweaney v. Ada Cty., Idaho, 119 F.3d

28 1385, 1391 (9th Cir. 1997) (quoting Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th

1 Cir. 1996)); see Davis v. Kissinger, No. CIV S-04-0878-GEB-DAD-P, 2009 WL 256574, *12 n.4

2 (E.D. Cal. Feb. 3, 2009). Nor is there any liability under § 1983 for violating prison policy.

3 Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (quoting Gardner v. Howard, 109 F.3d

4 427, 430 (8th Cir. 1997)). Thus, the violation of any state law or regulation that reaches beyond

5 the rights protected by the federal Constitution and/or the violation of any prison regulation, rule

6 or policy does not amount to a cognizable claim under federal law, nor does it amount to any

7 independent cause of action under § 1983. Accordingly, Plaintiff cannot maintain a § 1983 claim

8 for violations of prison rules or other California law.

9 III. Failure to Prosecute and Failure to Obey a Court Order

10 A. Legal Standard

11 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with

12 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .

13 within the inherent power of the Court.” District courts have the inherent power to control their

14 dockets and “[i]n the exercise of that power they may impose sanctions including, where

15 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A

16 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

17 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46

18 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,

19 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

20 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)

21 (dismissal for failure to comply with court order).

22 In determining whether to dismiss an action, the Court must consider several factors:

23 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its

24 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of

25 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779

26 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

27 ///

28 ///

1 B. Discussion

2 Here, Plaintiff’s first amended complaint is overdue, and he has failed to comply with the

3 Court’s order. The Court cannot effectively manage its docket if Plaintiff ceases litigating his

4 case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal.

5 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a

6 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.

7 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against

8 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d

9 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose

10 responsibility it is to move a case toward disposition on the merits but whose conduct impedes

11 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products

12 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).

13 Finally, the Court’s warning to a party that failure to obey the court’s order will result in

14 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;

15 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s March 9, 2022 screening

16 order expressly warned Plaintiff that his failure to file an amended complaint would result in a

17 recommendation of dismissal of this action, with prejudice, for failure to obey a court order and

18 for failure to state a claim. (ECF No. 11, p. 12.) Thus, Plaintiff had adequate warning that

19 dismissal could result from his noncompliance.

20 Additionally, at this stage in the proceedings there is little available to the Court that

21 would constitute a satisfactory lesser sanction while protecting the Court from further

22 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this

23 action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is

24 likely to have no effect given that Plaintiff has ceased litigating his case.

25 IV. Conclusion and Recommendation

26 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a

27 district judge to this action.

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1 Further, the Court finds that dismissal is the appropriate sanction and HEREBY

2 RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim

3 pursuant to 28 U.S.C. § 1915A, for failure to obey a Court order, and for Plaintiff’s failure to

4 prosecute this action.

5 These Findings and Recommendation will be submitted to the United States District Judge

6 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

7 (14) days after being served with these Findings and Recommendation, Plaintiff may file written

8 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

9 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the

10 specified time may result in the waiver of the “right to challenge the magistrate’s factual

11 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

12 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

13

IT IS SO ORDERED.

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15 Dated: April 22, 2022 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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