(PC) Walker v. Arnold

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 DERIK NATHANIEL WALKER, No. 2:19-cv-0185 TLN AC P

12 Plaintiff,

13 v. FINDINGS AND RECOMMENDATIONS

14 E. ARNOLD, et al.,

15 Defendants.

16

17 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil

18 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States

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

20 Plaintiff’s second amended complaint (“SAC”), ECF No. 31, is now before the court for

21 screening. This is the third complaint to have been screened in this case. See ECF Nos. 1, 16

22 (original complaint and first screening); 20, 28 (first amended complaint and second screening);

23 31 (second amended complaint). For the reasons stated below, the undersigned will recommend

24 that this action be dismissed for failure to state a claim upon which relief may be granted.

25 I. STATUTORY SCREENING OF COMPLAINT

26 The court is required to screen complaints brought by prisoners seeking relief against a

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

28 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

1 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[]

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

3 claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v.

4 Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir.

5 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal

6 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639,

7 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), superseded by statute on other grounds as

8 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a

9 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis.

10 Franklin, 745 F.2d at 1227-28 (citations omitted).

11 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

12 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

13 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550

14 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

15 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context

16 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman,

17 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure

18 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a

19 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the

20 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain

21 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally

22 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur

23 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

24 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

25 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

26 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual

27 content that allows the court to draw the reasonable inference that the defendant is liable for the

28 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this

1 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg.

2 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the

3 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor,

4 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted).

5 II. SECOND AMENDED COMPLAINT

6 The SAC names four individuals as defendants, all of whom are (or were) employed at

7 California State Prison – Solano (“CSP-Solano”): Correctional Officers K. Fox and J. Nixon,

8 Correctional Lieutenant J. Lee, and Warden E. Arnold. ECF No. 31 at 2-3. Plaintiff also brings a

9 claim against the Solano County Sheriff’s Department. Id. at 16. All claims arise from prison

10 disciplinary actions, and an ensuing criminal prosecution, that followed the discovery of

11 controlled substances in the prison laundry facility where plaintiff worked.

12 III. DISCUSSION

13 The SAC presents five claims, addressed in turn below, each of which is stated against a

14 different defendant and each of which asserts multiple constitutional violations. For the

15 following reasons, none of allegations of the operative complaint support claims upon which

16 relief may be granted. Accordingly, the complaint should be dismissed.

17 A. Claim One: Defendant Fox

18 1. Allegations

19 In Claim One, plaintiff alleges that he was working in the prison laundry and noticed

20 suspicious objects inside a mop-head coming down a conveyor belt. He took no action. Officer

21 Fox then seized plaintiff, put him in metal restraints, and placed him in a 2x2x7-foot cage.

22 Plaintiff was briefly taken to Fox’s office and interrogated. When plaintiff refused to “snitch,”

23 Fox returned him to the cage. Plaintiff remained in the cage for almost 6 hours, without lunch or

24 access to a bathroom. ECF No. 31 at 5-6. Plaintiff asserts that he was placed in the cage in

25 retaliation for his refusal to snitch, and that his placement in the cage violated the Eighth

26 Amendment. He also alleges that Fox submitted false evidence in the form of a rules violation

27 report, which resulted in his administrative segregation, guilt finding and attendant credit loss,

28 and wrongful referral for prosecution. Id. at 4.

1 2. Retaliation

2 To state a claim for retaliation in violation of the First Amendment, an incarcerated

3 plaintiff must allege facts establishing the following five elements: (1) adverse action against the

4 inmate by a state actor (2) because of (3) that prisoner’s protected conduct, and that such action

5 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not

6 reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68

7 (9th Cir. 2005). The Ninth Circuit has held in analogous contexts that there is no constitutionally

8 protected right not to “snitch.” Paguio v. Acosta, 114 F.3d 928, 930 (9th Cir. 1997) (rejecting

9 vindictive prosecution claim because refusal to snitch not protected conduct); United States v.

10 Gardner, 611 F.2d 770, 773 (9th Cir. 1980) (same). Accordingly, numerous district courts have

11 found that refusal to snitch cannot constitute protected conduct for purposes of an inmate’s First

12 Amendment retaliation claim. See Milliken v. Sturdevant, No. 18-CV-05326-LHK, 2020 U.S.

13 Dist. LEXIS 86062 at *24-26, 2020 WL 2512381 at *9 (N.D. Cal. May 15, 2020), appeal

14 dismissed, No. 20-16192, 2020 U.S. App. LEXIS 39715, 2020 WL 7383656 (9th Cir. Dec. 1,

15 2020).1 Because there is no Ninth Circuit authority for the proposition that refusing to inform is

16 conduct protected by the First Amendment, the undersigned agrees that adverse action in

17 response to such refusal cannot support a retaliation claim. Plaintiff therefore fails to state a

18 claim as a matter of law.

19 2. Conditions of Temporary Confinement in Cage

20 Conditions of confinement violate the Eighth Amendment only when two requirements

21 are met. “First, the deprivation alleged must be, objectively, sufficiently serious… a prison

22

1 See also, e.g., Johnson v. Suleyman, 2022 U.S. Dist. LEXIS 218777 at *16-17 (C.D. Cal. Oct.

23 25, 2022) (no retaliation claim where plaintiff alleged refusal to snitch was protected conduct);

Garland v. Redding, 2016 U.S. Dist. LEXIS 40591, 2016 WL 1222202, at *4 (C.D. Cal. Mar. 28,

24 2016) (finding plaintiff failed to show how his refusal to debrief is protected conduct); Simpson

v. Feltsen, 2010 U.S. Dist. LEXIS 46323, 2010 WL 1444487, at *3 (E.D. Cal. Apr. 9, 2010)

25

(failure to disclose source of drugs was “not protected conduct under the First Amendment”);

26 Dixon v. Gonzales, 2009 U.S. Dist. LEXIS 102893, 2009 WL 3416005, at *3 n.1 (E.D. Cal. Oct.

21, 2009) (finding plaintiff failed to state a claim for retaliation based upon a right not to speak

27 (or not to “snitch”) because “[c]hoosing not to disclose information about possible safety and

security concerns is not protected conduct”), findings and recommendations adopted by 2009

28 U.S. Dist. LEXIS 118429, 2009 WL 5125612 (E.D. Cal. Dec. 21, 2009).

1 official’s act or omission must result in the denial of the minimal civilized measure of life's

2 necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and

3 citations omitted). Second, the prison official must subjectively “have a sufficiently culpable

4 state of mind . . . one of deliberate indifference to inmate health or safety.” Id. (internal quotation

5 marks and citations omitted). “What is necessary to show sufficient harm for purposes of the

6 Cruel and Unusual Punishment Clause depends upon the claim at issue.” Hudson v. McMillian,

7 503 U.S. 1, 8 (1992). “[E]xtreme deprivations are required to make out a[n] [Eighth Amendment]

8 conditions-of-confinement claim.” Id. at 9.

9 One missed lunch, 6 hours without a bathroom, and temporary confinement in a very

10 small space do not rise to the level of an Eighth Amendment violation either singly or in

11 combination. See Anderson v. County of Kern, 45 F.3d 1310, 1313-15 (9th Cir. 1995) (overnight

12 confinement in unsanitary conditions, shackled to waste-encrusted toilet grate, did not state claim

13 under Eighth Amendment because temporary); LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir.

14 1993) (temporary denial of regular meals “falls short of the deprivation necessary to form the

15 basis of an Eighth Amendment violation”); Owens v. Padilla, No. C-06-4778, 2008 WL 3916068,

16 at *4 (N.D. Cal. Aug. 22, 2008) (six-hour confinement in prison barbershop without access to

17 bathroom did not state Eighth Amendment claim). The conditions alleged here were undoubtedly

18 unpleasant, and the court does not suggest they were appropriate. However, especially in the

19 context of an immediate response to a potential prison security issue, such temporary deprivations

20 are not unconstitutional. See Sandin v. Conner, 515 U.S. 472, 482 (1995) (“federal courts ought

21 to afford appropriate deference and flexibility to state officials trying to manage a volatile

22 environment”). Because plaintiff’s allegations establish neither a sufficiently grave deprivation

23 nor deliberate indifference to plaintiff’s health or safety on defendant Fox’s part, the claim fails.

24 3. False Rules Violation Report

25 Plaintiff cannot base a claim for relief under Section 1983 on the allegation that Fox filed

26 a false report or falsified evidence. Although wrong, such conduct is not unconstitutional and

27 therefore cannot support a cognizable claim. See Hines v. Gomez, 108 F.3d 265, 268 (9th Cir.

28 1997) (“[T]here are no procedural safeguards protecting a prisoner from false retaliatory

1 accusations.”); accord, Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Freeman v.

2 Rideout, 808 F.2d 949, 951 (2nd Cir. 1986).

3 B. Claim Two: Defendant Nixon

4 1. Allegations

5 Plaintiff alleges that after he was detained by Officer Fox in relation to the contraband

6 investigation, Officer Nixon conducted a strip search in violation of plaintiff’s Fourth

7 Amendment rights and then placed him in the Security Housing Unit (“SHU”) in violation of his

8 Eighth Amendment rights. Plaintiff did not consent to the search, which included visual body

9 cavity inspection. He also did not consent to SHU confinement. ECF No. 31 at 6-8.

10 2. The Strip Search

11 Neither strip searches nor routine visual body cavity searches violate the Fourth

12 Amendment rights of prisoners. Bell v. Wolfish, 441 U.S. 520, 558 (1979); Thompson v. Souza,

13 111 F.3d 694, 700 (9th Cir. 1977); Michenfelder v. Sumner, 860 F.2d 328, 332-33 (9th Cir.

14 1988).

15 Strip searches that are “excessive, vindictive, harassing, or unrelated to any legitimate penological

16 interest,” however, may be unconstitutional. Michenfelder, 860 F.2d at 332. Lack of consent

17 does not render a strip search excessive, vindictive, harassing or devoid of penological purpose.

18 The circumstances alleged in the complaint—investigation of contraband discovered in plaintiff’s

19 workplace—preclude any plausible allegation that the search was unrelated to a legitimate

20 penological interest. To the contrary, prison officials have a duty to maintain safety and internal

21 order, and they are given broad discretion to do so. Bell, 441 U.S. at 547; Lucero v. Russell, 741

22 F.2d 1129 (9th Cir. 1984). Nothing in plaintiff’s allegations supports an inference that the search

23 exceeded the bounds of constitutionally permissible strip searches and body cavity inspections.

24 3. The SHU Placement

25 Plaintiff’s subsequent SHU placement was also related to the contraband incident and

26 therefore had a clear penological purpose. Claim Two fails to identify any act of Officer Nixon

27 that violated plaintiff’s rights. Assuming that plaintiff intends to base this claim for relief on a

28 theory that he was denied due process, the Constitution does not require a hearing or other review

1 of the evidence supporting segregation prior to a prisoner’s placement in administrative or other

2 segregation pending investigation. Hewitt v. Helms, 459 U.S. 460, 476 (1983), abrogated in part

3 on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). Moreover, SHU placement itself

4 does not violate the Eighth Amendment because its conditions are among those contemplated by

5 the inmate’s sentence served. See Resnick v. Hayes, 213 F.3d 443 (9th Cir. 2000) (disciplinary

6 segregation); May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997 (administrative segregation).

7 Accordingly, plaintiff fails to state any claim against Officer Nixon.

8 C. Claim Three: Defendant Lee

9 1. Allegations

10 Lt. Lee was the Senior Hearing Officer who conducted the disciplinary hearing that

11 followed the contraband incident. The SAC alleges that Lee acted “arbitrarily and capriciously”

12 by denying plaintiff’s request to have a witness at the hearing and by imposing a 180-day SHU

13 term “based upon evidence he knew or should have known was false.” ECF No. 31 at 8. Plaintiff

14 contends that the denial of the witness, the finding that he had participated in the introduction of

15 contraband, and the SHU term violated his due process and Eighth Amendment rights. Id. at 8-

16 10.

17 2. Denial of Witness

18 Inmates have a constitutionally protected right not to be punished for misconduct without

19 due process, though the process due in prison disciplinary proceedings is limited. In Wolff v.

20 McDonnell, the Supreme Court established the following requirements: (1) advance, written

21 notice of the violation; (2) at least 24 hours to prepare for a committee appearance; (3) a written

22 statement of fact-finding; (4) the right to present witnesses and evidence where it would not be

23 unduly hazardous to institutional safety; (5) an impartial decision-maker; and (6) assistance if

24 inmate is illiterate or if issues are complex. 418 U.S. 539, 564-70 (1974). Prison officials

25 maintain the necessary discretion to keep a hearing within reasonable limits and to refuse to call

26 witnesses that may create a risk of reprisal or undermine authority. Id. at 566.

27 Plaintiff states that the reason defendant Lee denied his request to have a particular

28 witness at his hearing was because “witnesses [were] not allowed in the SHU.” ECF No. 31 at 9.

1 A witness exclusion decision based on security concerns cannot support a due process claim

2 under Wolff. Plaintiff’s conclusory allegation that the decision was “arbitrary and capricious”

3 cannot overcome this problem. Neither can the allegation that state law was violated, ECF No. 31

4 at 9, because California statutes do not define the contours of federal constitutional rights.

5 At the hearing, plaintiff was able to view and respond to a video recording of the laundry

6 room contraband incident, and was permitted to present a favorable written statement from

7 another inmate. Id. at 9-10. The attachments to the complaint, id. at 25-50, reflect that the

8 minimal due process requirements of Wolff were satisfied. Accordingly, the SAC fails to state a

9 claim based on the conduct of the hearing.

10 3. Guilt Finding

11 To the extent that plaintiff challenges the finding that he committed the charged

12 misconduct, his claim fails as a matter of law because the Constitution requires only that the

13 disciplinary finding be based on “some evidence.” See Superintendent v. Hill, 472 U.S. 445, 454

14 (1985). The record reflects the hearing officer’s reliance on Officer Fox’s report, which in turn

15 relied on confidential information. This indisputably constitutes “some evidence,” though

16 plaintiff has disputed the accuracy of that evidence since the incident. Because the falsification of

17 evidence does not support a constitutional violation, as explained above, plaintiff’s theory as to

18 the invalidity of the guilt finding necessarily fails.

19 4. SHU Term Imposed

20 Plaintiff cannot state a constitutional claim based on his placement in segregation because

21 due process is only implicated by restraint which imposes atypical and significant hardship on a

22 prisoner in relation to the ordinary incidents of prison life. See Sandin, 515 U.S. at 483-84.

23 Disciplinary segregation does not meet this standard. Resnick v. Hayes, 213 F.3d 443 (9th Cir.

24 2000).

25 D. Claim Four: Defendant Arnold

26 1. Allegations

27 Claim Four alleges that Warden Arnold violated plaintiff’s rights in four ways: (1) having

28 plaintiff summarily placed in the SHU based on false evidence; (2) targeting plaintiff and other

1 Black laundry workers for discriminatory treatment in relation to the contraband incident, in

2 violation of equal protection; (3) false arrest; and (4) malicious prosecution. ECF No. 31 at 10-

3 11. In support of these claims, plaintiff provides details of the criminal case that was brought

4 against him in Solano County Superior Court arising from the prison contraband incident. Id. at

5 11-16. The SAC alleges that plaintiff spent more than a year being shuttled between the CSP-

6 Solano SHU and the Solano County Jail. The charges against him were eventually dismissed

7 after Officer Fox was impeached at a pretrial hearing with the incident videotape, which showed

8 plaintiff standing at his work position and taking no action to cover up the contraband, contrary to

9 Fox’s testimony. Id. at 14. Plaintiff alleges in conclusory terms that Warden Arnold had known

10 all along that Fox’s report was false. Id. at 15.

11 2. SHU Placement

12 For the reasons already explained, neither plaintiff’s pre-hearing SHU placement nor the

13 imposition of a SHU term following the rules violation hearing can support a viable constitutional

14 claim. The same analysis applies to plaintiff’s time in SHU during the course of his Solano

15 County prosecution. Moreover, as to Warden Arnold, neither the factual allegations of the

16 complaint nor the attachments indicate that Arnold personally caused the SHU placement.2

17 Without personal involvement, there can be no liability under Section 1983. See Starr v. Baca,

18 652 F.3d 1202, 1207 (9th Cir. 2011); Taylor v List, 880 F.2d 1040, 1045 (9th Cir. 1989).

19 3. Racial Discrimination

20 The Equal Protection Clause broadly requires the government to treat similarly situated

21 people equally. Hartman v. California Dep’t of Corr. and Rehabilitation, 707 F.3d 1114, 1123

22 (9th Cir. 2013). To state an equal protection claim, a plaintiff must allege that defendant acted

23 with an intent or purpose to discriminate against him based upon plaintiff’s membership in a

24 protected class such as a particular racial group. Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th

25 Cir. 2013). Plaintiff must plead specific facts that demonstrate unlawful discrimination or support

26

27 2 The attachments to the SAC reflect that Warden Arnold denied plaintiff’s inmate appeal of the

matter at the Second Level. ECF No. 31 at 45. This performance of a review function does not

28 establish liability for the underlying action.

1 an inference of discriminatory intent. Byrd v. Maricopa Cnty. Sheriff’s Dep’t, 565 F.3d 1205,

2 1212 (9th Cir. 2009).

3 Plaintiff’s allegations of racial discrimination are entirely conclusory. To the extent that

4 there was a racial disparity among those prisoners charged internally with disciplinary infractions

5 and referred externally for prosecution, the complaint is devoid of allegations that would support

6 an inference of intentional racial discrimination. The complaint is also devoid of allegations that

7 would establish Warden Arnold’s involvement in the decisions regarding which inmates should

8 face disciplinary charges and which should be referred for prosecution. There is no basis for an

9 inference that Warden Arnold’s involvement, if any, was influenced by racial considerations.

10 4. False Arrest and Malicious Prosecution

11 Plaintiff seeks to hold Warden Arnold responsible for his arrest and prosecution on

12 criminal charges, but nothing in the complaint establishes Arnold’s involvement in those

13 decisions. Any such allegations would not be plausible, because prison officials lack the

14 authority to initiate criminal prosecutions. Even if Arnold had personally authorized the referral

15 of plaintiff’s case to local law enforcement for consideration of prosecution, that would not

16 support liability for the decisions subsequently made by Solano County officials to arrest, charge,

17 and prosecute. Being a link in the chain of events does not support the causation that Section

18 1983 requires. See Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999) (officers who

19 conducted illegal search cannot be liable under § 1983 for the ensuing wrongful conviction and

20 incarceration, because intervening acts of the prosecutor and judge defeat proximate causation).3

21 E. Claim Five: Solano County Sheriff’s Department

22 1. Allegations

23 The SAC alleges in Claim Five that the Solano County Sheriff’s Department is liable for

24 plaintiff’s false arrest/false imprisonment during the course of the criminal case against him, and

25

26

3 A malicious prosecution claim against a proper Solano County defendant would also fail. Such

a claim requires facts showing that defendant(s) prosecuted plaintiff with malice, without

27 probable cause, and for the purpose of denying him equal protection or another specific

constitutional right. Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). No such

28 allegations are present, or plausible, in this case.

1 for malicious prosecution. ECF No. 31 at 16-17. The factual basis of the claim is substantially

2 identical to that of Claim Four. See id. at 17-20.

3 2. Municipal Liability

4 A suit against the Solano County Sheriff’s Department is properly construed as a suit

5 against Solano County. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citing Monell v.

6 New York City Dept. of Social Services, 436 U.S. 658, 690, n.55 (1978)). Local governmental

7 entities may be liable under Section 1983 for civil rights violations. See e.g. Karim-Panahi v. Los

8 Angeles Police Dept., 839 F.2d 621, 624 n.2. However, the Supreme Court has limited municipal

9 liability to the unconstitutional implementation or execution of a municipal “policy statement,

10 ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.”

11 Monell, 436 U.S. at 690. The SAC does not allege that plaintiff’s arrest, detention or prosecution

12 reflected a specific county policy or procedure, or the violation of a policy or procedure.

13 Accordingly, there is no basis for liability on the part of the County or its Sheriff’s Department.4

14 F. Further Leave to Amend is Not Warranted

15 Leave to amend should be granted if it appears possible that the defects in the complaint

16 could be corrected, especially if a plaintiff is pro se. Lopez v. Smith, 203 F.3d 1122, 1130-31

17 (9th Cir. 2000) (en banc). If after careful consideration, however, it is clear that a complaint

18 cannot be cured by amendment, the court may dismiss without leave to amend. Cato v. United

19 States, 70 F.3d 1103, 1105-06 (9th Cir. 1995). Leave to amend may be denied where amendment

20 is futile or there has been a repeated failure to cure deficiencies. Foman v. Davis, 371 U.S. 178,

21 182 (1962). Here, plaintiff has already amended twice and the factual basis for his putative

22 claims is clear. It is equally clear that the events described in the Second Amended Complaint do

23 not establish a constitutional violation. Further leave to amend therefore should be denied as

24 futile.

25 ////

26 ////

27

4 In any event, the prison disciplinary findings established probable cause even if plaintiff was in

28 fact innocent, defeating any claim of false arrest or imprisonment and of malicious prosecution.

1 IV. PLAIN ENGLISH SUMMARY FOR PRO SE PLAINTIFF

2 The magistrate judge 1s recommending that your case be dismissed. Even if you were

3 || innocent of the contraband charges, the wrongs you describe in the complaint did not violate your

4 || constitutional rights. You will have an opportunity to object to this recommendation in writing

5 || before the district judge makes then final decision.

6 CONCLUSION

7 For the reasons set forth above, IT IS HEREBY RECOMMENDED that the complaint be

8 | DISMISSED with prejudice for failure to state a claim upon which relief may be granted. See 28

9 | US.C. § 1915A(b)(1).

10 These findings and recommendations are submitted to the United States District Judge

11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

12 | after being served with these findings and recommendations, plaintiff may file written objections

13 || with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

14 | and Recommendations.” Plaintiff is advised that failure to file objections within the specified

15 || time waives the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th

16 | Cir. 1991).

17 | DATED: May 3, 2023 . ~

18 Bettie Clare

19 ALLISON CLAIRE

UNITED STATES MAGISTRATE JUDGE

20

21

22

23

24

25

26

27

28

12