(PC) Howard v. Rodriguez

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 KARLIS RUBEN AUGUSTUS No. 1:24-cv-00285-SAB (PC)

HOWARD,

12 ORDER DIRECTING CLERK OF COURT TO

Plaintiff, RANDOMLY ASSIGN A DISTRICT JUDGE

13 TO THIS ACTION

v.

14 FINDINGS AND RECOMMENDATIONS

AYLANA OLIVIA PARKS, et al., RECOMMENDING DISMISSAL OF

15 CERTAIN CLAIMS AND DEFENDANTS

Defendants.

16 (ECF No. 12)

17

18 Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42

19 U.S.C. § 1983.

20 Currently before the Court is Plaintiff’s third amended complaint, filed June 20, 2024.

21 (ECF No. 12.)

22 I.

23 SCREENING REQUIREMENT

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

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

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

27 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that

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1 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. §

2 1915(e)(2)(B); see also 28 U.S.C. § 1915A(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)). Moreover, Plaintiff must demonstrate

8 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v.

9 Williams, 297 F.3d 930, 934 (9th Cir. 2002).

10 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings

11 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d

12 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be

13 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer

14 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss

15 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant

16 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s

17 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d

18 at 969.

19 II.

20 COMPLAINT ALLEGATIONS

21 The Court accepts Plaintiff’s allegations in his complaint as true only for the purpose of

22 the screening requirement under 28 U.S.C. § 1915.

23 The incidents at issue in the third amended complaint took place at Wasco State Prison.

24 Plaintiff names inmate Scott Stansell, City of Wasco, officer Rodriguez, officer J. Fernandez,

25 officer C. Retamoza, sergeant B. Maddix, lieutenant R. Singleton, supervisor R. Nickell,

26 lieutenant S. Sanchez, officer K. Carpenter, warden H. Shirley, the California Department of

27 Corrections and Rehabilitation, County of Kern, and Wasco State Prison, as Defendants.

28 Plaintiff’s third amended complaint is a verbatim copy of the second amended complaint,

1 with the addition of state law allegations of intentional infliction of emotional distress, assault and

2 battery, and Bane Act violation with respect to Defendant inmate Scott Stansell.

3 Plaintiff arrived at Wasco State Prison on March 2, 2023, and placed in C-3 A-side on or

4 about March 16, 2023. From March 16, to May 16, 2023, Plaintiff witnessed over 20 instances of

5 violence in Dorm C-3, where no action was taken by staff, including all the named Defendants.

6 On April 7, 2023, at approximately 6:30 a.m., Plaintiff was standing by his rack waiting

7 for C-yard to open when he was threatened by inmate Scott Stansell. Scott Stansell threatened

8 Plaintiff stating, “I’m going to beat your mother fucking ass” and “go get into the shower mother

9 fucker” and “lets go fight…right now motherfucker, I’m going to kick your ass, I’m going to

10 punch and kick your ass.” Inmate Stansell then proceeded to act on his threat by assaulting and

11 battering Plaintiff resulting in physical injuries. Stansell continued to attack Plaintiff with no

12 action taken by officer Rodriguez as a result of lack of training and supervision.

13 Plaintiff was able to push inmate Stansell off him and then gestured to officer Rodriguez

14 who took no action to prevent the attack. Plaintiff contends Rodriguez failed to use reasonable

15 force to stop inmate Stansell from assaulting Plaintiff. Rodriguez failed to give any verbal orders,

16 failed to use restraints on Stansell, failed to act to stop the fight, and failed to control and report

17 the fight.

18 At approximately 6:45 a.m., Plaintiff saw Stansell approach him stating, I’m going to beat

19 your ass on the yard home boy. Don’t get hit with the gun on the yard homie. We are going to

20 fight to the death on the yard and I can’t wait to get my revenge on you motherfucker. Don’t

21 even think about filing a 602 for this incident. My gang, the Fresnecks, are at every prisoner, if

22 you file a 602 we will find you and beat your ass.”

23 At approximately 7:15 a.m., C-3 yard opened and Plaintiff’s exited his cell. At

24 approximately 7:25 a.m., Rodriguez allowed inmate Stansell out on the C-yard to assault Plaintiff.

25 At approximately 7:42 a.m., Plaintiff was walking to the track on C-yard when he noticed inmate

26 Stansell. At that point, Stansell yelled out “motherfucker” and took several steps toward Plaintiff

27 then assaulted and battered him by punching him in the head, neck, torse, and chest. Rodriguez

28 by allowing inmate Stansell out on the C-yard thereby condoned, authorized, created, and allowed

1 Stansell to assault Plaintiff causing injury. At approximately 7:45 a.m., officers Fernandez,

2 Retamoza and Hasha gave orders to get down on the yard. Officers Retamoza and Hasha

3 assaulted Plaintiff by lifting their block guns as if to shoot Plaintiff if he failed to comply. Inmate

4 Stansell then proceeded to strike Plaintiff on the right side of his face knocking Plaintiff

5 completely to the ground. Officers Retamoza and Hasha then falsely arrested, imprisoned, and

6 assaulted Plaintiff by physically grabbing and placing him in handcuffs while pulling him to his

7 feet. At approximately 7:45 a.m., Plaintiff and Stansell were escorted off the yard and placed in

8 bird cages.

9 On or about April 12, 2023, Plaintiff was provided a copy of a Rules Violation Report for

10 the incident and charged with fighting.

11 Upon learning, hearing, and witnessing the attack by inmate Stansell on April 7, 2023,

12 Rodriguez could and should have taken some action to stop the attack, but he took no action

13 whatsoever from the time of the first assault to the end of the second assault.

14 Plaintiff contends supervisors Shirley, Carpenter, Sanchez, and Maddux, failed to train

15 and supervise officer Rodriguez. From March 2 to May 16, 2023, Dorm C-3 A-side at Wasco

16 State Prison was a place where violent and terror reigned.

17 Inmate Scott Stansell attacked, assaulted, battered, and threatened Plaintiff causing

18 physical, mental, emotional and psychological injuries. On or about April 7, 2023, inmate

19 Stansell assaulted and battered Plaintiff resulting in physical injuries. Stansell criminally

20 threatened Plaintiff numerous times stating, “I’m going to beat your mother fucking ass!”

21 III.

22 DISCUSSION

23 A. Section 1983 and Color of State Law

24 Section 1983 allows a private citizen to sue for the deprivation of a right secured by

25 federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). “To

26 establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the

27 Constitution and laws of the United States, and (2) that the deprivation was committed by a

28 person acting under color of state law.” Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143,

1 1149 (9th Cir. 2011) (citing Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003)); Soo Park v.

2 Thompson, 851 F.3d 910, 921 (9th Cir. 2017). “The ‘under color of law’ requirement under §

3 1983 is the same as the Fourteenth Amendment’s ‘state action’ requirement.” Chudacoff, 649

4 F.3d at 1149 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 928 (1982)).

5 Courts have consistently rejected attempts by prisoner plaintiffs to sue fellow inmates

6 under § 1983. See, e.g., Jackson v. Foster, 372 F. App’x 770, 771 (9th Cir. 2010) (concluding that

7 “the district court properly dismissed Jackson's excessive force claim because [fellow] inmate ...

8 did not act under color of state law under any formulation of the governmental actor tests”); see

9 also Gettimier v. Burse, 2015 WL 75224, at *5 n.3 (E.D. Mo. Jan. 6, 2015) (“The fact that a

10 fellow inmate is not a ‘state actor’ for purposes of § 1983 litigation is so fundamental as to not

11 require citation.”); Rigano v. Cty. of Sullivan, 486 F. Supp. 2d 244, 256 n.15 (S.D.N.Y. 2007) (“It

12 is well-established that a § 1983 claim is only cognizable against a state actor and not a fellow

13 inmate.”); cf. Williams v. Calidonna, 2007 WL 432773, at *1-2 (N.D.N.Y. Feb. 2, 2007)

14 (dismissing § 1983 action against inmates despite allegation they were working as state

15 informants). Accordingly, Plaintiff cannot succeed in stating a section 1983 claim against fellow

16 inmate Steven Stansell in this case as inmates are not state actors.

17 B. CDCR and Wasco State Prison as Defendants

18 CDCR and Wasco State Prison protected under the doctrine of sovereign immunity. The

19 Eleventh Amendment of the United States Constitution prohibits suits against a state and its

20 agencies and departments for legal or equitable relief. See Federal Maritime Commission v. South

21 Carolina State Ports Authority, 535 U.S. 743, 753 (2002). “The Eleventh Amendment’s

22 jurisdictional bar covers suits naming state agencies and departments as defendants and applies

23 whether the relief sought is legal or equitable in nature.” Brooks v. Sulphur Springs Valley Elec.

24 Co-op., 951 F.2d 1050, 1053 (9th Cir. 1991) (quotation omitted).

25 Congress may validly abrogate a state’s sovereign immunity by statute, but the Supreme

26 Court has repeatedly emphasized that “§ 1983 was not intended to abrogate a State’s Eleventh

27 Amendment immunity.” Kentucky v. Graham, 473 U.S. 159, 169 n.17 (1985); accord Quern v.

28 Jordan, 440 U.S. 332, 342 (1979); see also Dittman v. California, 191 F.3d 1020, 1025-26 (9th

1 Cir. 1999). In the context of prisoner lawsuits specifically, the Ninth Circuit has expressly and

2 repeatedly held that CDCR and prisons within CDCR are immune from suit under the Eleventh

3 Amendment. See, e.g., Brown v. Cal. Dep’t of Corrs., 554 F.3d 747, 752 (9th Cir. 2009) (“The

4 district court correctly held that the California Department of Corrections and the California

5 Board of Prison Terms were entitled to Eleventh Amendment immunity.”); Holley v. Cal. Dept.

6 of Corr., 599 F.3d 1108, 1112 (9th Cir. 2010). Because claims under 42 U.S.C. § 1983 against

7 CDCR and Wasco State Prison are barred by the Eleventh Amendment, they are not proper

8 Defendants in this action.

9 C. Failure to Protect

10 Prison officials have a duty under the Eighth Amendment to protect prisoners from

11 violence at the hands of other prisoners because being violently assaulted in prison is simply not

12 part of the penalty that criminal offenders pay for their offenses against society. Farmer, 511 U.S.

13 at 833-34; Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009); Hearns v. Terhune, 413 F.3d

14 1036, 1040 (9th Cir. 2005). However, prison officials are liable under the Eighth Amendment

15 only if they demonstrate deliberate indifference to conditions posing a substantial risk of serious

16 harm to an inmate; and it is well settled that deliberate indifference occurs when an official acted

17 or failed to act despite his knowledge of a substantial risk of serious harm. Farmer, 511 U.S. at

18 834, 841; Clem, 566 F.3d at 1181; Hearns, 413 F.3d at 1040. Mere negligent failure to protect an

19 inmate from harm is not actionable under § 1983. Farmer, 511 U.S. at 835 (explaining “deliberate

20 indifference entails something more than mere negligence”).

21 In this case, the alleged deprivation -- being subjected to physical assault – is no doubt

22 sufficiently serious. Liberally construed, Plaintiff’s allegations are sufficient to give rise to a

23 cognizable failure to protect claim against Defendant Rodriguez only.

24 D. Monell Liability

25 As local government units, the County of Kern and City of Wasco are proper defendants

26 in a suit brought under 42 U.S.C. § 1983. See Monell v. Department of Social Services, 436 U.S.

27 658, 691 (1978); Hammond v. County of Madera, 859 F.2d 797, 801 (9th Cir. 1988). However,

28 local government units may be held liable under section 1983 only where the plaintiff alleges

1 facts showing a constitutional deprivation was caused by a policy statement, ordinance,

2 regulation, or decision officially adopted and promulgated by the local government unit or by the

3 local government's final decision maker. Monell, 436 U.S. at 690; Board of the County

4 Commissioners v. Brown, 520 U.S. 397, 402-04 (1997); Navarro v. Block, 72 F.3d 712, 714 (9th

5 Cir. 1995). In other words, a Monell claim exists only where the alleged constitutional

6 deprivation was inflicted in “execution of a government’s policy or custom.” Monell, 436 U.S. at

7 694. Here, the complaint contains no such allegations against the County of Kern and City of

8 Wasco. Accordingly, the complaint fails to state a claim against either local government unit. See

9 Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (applying Iqbal’s pleading

10 standards to Monell claims).

11 E. Supervisory Liability

12 A supervisory official is liable under section 1983 if (1) the official is personally involved

13 in the constitutional deprivation, or (2) there is a “sufficient causal connection between the

14 supervisor’s wrongful conduct and the constitutional violation.” Keates v. Koile, 883 F.3d 1228,

15 1242–43 (9th Cir. 2018) (quoting Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). “The

16 requisite causal connection can be established ... by setting in motion a series of acts by others or

17 by knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] knew or

18 reasonably should have known would cause others to inflict a constitutional injury.” Starr, 652

19 F.3d at 1207–08 (internal quotation marks and citations omitted) (alterations in original). Thus, a

20 supervisor may “be liable in his individual capacity for his own culpable action or inaction in the

21 training, supervision, or control of his subordinates; for his acquiescence in the constitutional

22 deprivation; or for conduct that showed a reckless or callous indifference to the rights of others.”

23 Keates, 883 F.3d at 1243 (quoting Starr, 652 F.3d at 1208).

24 “Conclusory allegations that various prison officials knew or should have known about

25 constitutional violations occurring against plaintiff simply because of their general supervisory

26 role are insufficient to state a claim under 42 U.S.C. § 1983.” Sullivan v. Biter, No. 15-cv-00243,

27 2017 WL 1540256, at *1 (E.D. Cal. Apr. 28, 2017) (citing Monell v. Dep’t of Soc. Servs., 436

28 U.S. 658, 691 (1978) and Starr, 652 F.3d at 1207). In other words, to state a claim against any

1 individual defendant based on supervisory liability, Plaintiff “must allege facts showing that the

2 individual defendant participated in or directed the alleged violation, or knew of the violation and

3 failed to act to prevent it.” Richard v. Holtrop, No. 15-cv-5632, 2016 WL 11520620, at *5 (C.D.

4 Cal. May 12, 2016) (emphasis in original) (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th

5 Cir. 1998)) (“A plaintiff must allege facts, not simply conclusions, that show that an individual

6 was personally involved in the deprivation of his civil rights.”).

7 Plaintiff contends that because of all the instances of violence at Wasco State Prison C-3

8 there is no way that supervisors Shirley, Carpenter, Sanchez, Maddux could not have known

9 Rodriguez was violating the constitutional rights of inmates, such as Plaintiff. These supervisors

10 took no action to remedy the cause of the violation. Plaintiff has failed to allege facts

11 demonstrating that the supervisor Defendants were either personally involved in or causally

12 connected to the constitutional deprivations that Plaintiff alleged to have experienced. Simply

13 stating that supervisors could or should have known is insufficient to establish liability under

14 section 1983. See, e.g., Krainskin v. Nev. Ex rel. Bd. Of Regents of Nev. Sys. Of Higher Educ.,

15 616 F.3d 963, 969 (9th Cir. 2010) (dismissing complaint because plaintiff “merely alleged in a

16 conclusory fashion that the officers ‘knew or should have known’ ” of the violation); Buckley v.

17 Cty. of San Mateo, 2017 WL 3394747, at *2 (N.D. Cal. Aug. 8, 2017) (“Supervisor defendants

18 are entitled to qualified immunity where the allegations against them are simply ‘bald’ or

19 ‘conclusory’ because such allegations do not ‘plausibly’ establish the supervisors’ personal

20 involvement in their subordinates’ constitutional wrong.” (citing Iqbal, 556 U.S. at 675-84));

21 Sullivan v. Biter, 2017 WL 1540256, at *1 (“Conclusory allegations that various prison officials

22 knew or should have known about constitutional violations occurring against plaintiff simply

23 because of their general supervisory role are insufficient to state a claim under 42 U.S.C. §

24 1983.”). Accordingly, Plaintiff fails to state a cognizable claim against any of the supervisor

25 Defendants.

26 F. Failure to Train

27 As to the allegation that supervisory Defendants failed to properly train Defendant

28 Rodriguez, municipal liability arising from an alleged failure to train prison staff requires

1 allegations “that ‘the need for more or different training is so obvious, and the inadequacy so

2 likely to result in the violation of constitutional rights, that the policymakers of the city can

3 reasonably be said to have been deliberately indifferent to the need.’ ” Rodriguez v. City of Los

4 Angeles, 891 F.3d 776, 802 (9th Cir. 2018), quoting City of Canton v. Harris, 489 U.S. 378, 390

5 (1989). Individual liability based on a failure to train requires factual allegations of the

6 individual’s participation in the alleged constitutional violation. “[A] plaintiff must plead that

7 each Government official defendant, through the official's own individual actions, has violated

8 the constitution.” Iqbal, 556 U.S. at 676-77 (rejecting argument that “a supervisor’s mere

9 knowledge of his subordinate’s [unconstitutional actions] amounts to the supervisor’s violating

10 the Constitution.”) “A supervisory official may be held liable under § 1983 only if ‘there exists

11 either (1) his or her personal involvement in the constitutional violation, or (2) a sufficient causal

12 connection between the supervisor's wrongful conduct and the constitutional violation.’ ” Keates

13 v. Koile, 883 F.3d 1228, 1242-43 (9th Cir. 2018) (quoting Starr v. Baca, 652 F.3d 1202, 1207

14 (9th Cir. 2011)). “In a section 1983 claim, a supervisor is liable for the acts of his subordinates if

15 the supervisor participated in or directed the violations, or knew of the violations of subordinates

16 and failed to act to prevent them.” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009) (internal

17 quotation marks omitted).

18 Here, Plaintiff contends that Defendant Rodriguez’s supervisors failed to train and/or

19 supervise him resulting in deliberate indifference. However, Plaintiff has not alleged facts

20 demonstrating that supervisory Defendants were deliberately indifferent to a need for more or

21 different training which would have resulted in Defendant Rodriguez separating inmate Stansell

22 from Plaintiff on the yard. In addition, Plaintiff has failed to demonstrate that his deprivation

23 resulted from an official policy or custom established by a policymaker possessed with final

24 authority to establish that policy. Indeed, Plaintiff “cannot prove the existence of a municipal

25 policy or custom based solely on the occurrence of a single incident of unconstitutional action by

26 a non-policymaking employee.” Davis v. City of Ellensburg, 869 F.2d 1230, 1233 (9th Cir.

27 1989); see also Duenas v. Cty. of Riverside, No. EDCV 21-1645 (SPx), 2022 WL 2167601, at *4

28 (C.D. Cal. Apr. 7, 2022) (“Allegations of a single occurrence of an alleged constitutional

1 violation do[ ] not equate to a policy or custom.”); Naranjo v. City of Redwood City, No. 19-cv-

2 01549-YGR, 2019 WL 3842074, at *8 n.14 (N.D. Cal. Aug. 15, 2019) (“With respect to customs

3 and practices, liability may not be premised on an isolated incident.”). Accordingly, Plaintiff fails

4 to state a cognizable claim for relief.

5 G. State Law Claims

6 Plaintiff attempts to bring several state law claims, including negligence, false

7 imprisonment, intentional infliction of emotional distress, criminal threats, assault and battery,

8 unreasonable search and seizure, and Bane Act violation.

9 1. Negligence

10 In California, a cause of action for negligence requires (1) a legal duty to use reasonable

11 care; (2) breach of that duty; and (3) proximate cause between the breach and (4) the plaintiff's

12 injury. Mendoza v. City of Los Angeles, 66 Cal. App. 4th 1333, 1339, 78 Cal.Rptr.2d 525 (1998).

13 “In California, prison officials owe detainees a duty to protect them from foreseeable harm.”

14 Cotta v. County of Kings, 686 F. App’x 467, 469 (9th Cir. 2017); Edison v. United States, 822

15 F.3d 510, 521 (9th Cir. 2016); Giraldo v. Cal. Dep’t of Corr. & Rehab., 168 Cal. App. 4th 231,

16 252–53, 85 Cal.Rptr.3d 371 (2008). This standard requires a much lower level of culpability than

17 deliberate indifference. See Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir.

18 2016).

19 Here, for the same reasons the Court has found a sufficient Eighth Amendment failure to

20 protect claim, the complaint adequately alleges separate state law claims for negligence; however,

21 the remainder of Plaintiff’s state law claims are not cognizable. Mendoza, 66 Cal. App. 4th at

22 1339 (elements of negligence are duty to use reasonable care, breach of duty, and breach is the

23 proximate cause of plaintiff’s injury); Giraldo, 168 Cal. App. 4th 231, 252 (2008) (“jailers owe

24 prisoners a duty of care to protect them from foreseeable harm”).

25 2. Intentional Infliction of Emotional Distress

26 Under California law, the elements of intentional infliction of emotional distress are: (1)

27 extreme and outrageous conduct by the defendant with the intention of causing, or reckless

28 disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or

1 extreme emotional distress; and (3) actual and proximate causation of the emotional distress by

2 the defendant's outrageous conduct. Corales v. Bennett, 567 F.3d at 571. Conduct is outrageous if

3 it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. Id. In

4 addition to the requirement that the conduct be intentional and outrageous, the conduct must have

5 been directed at Plaintiff or occur in the presence of Plaintiff of whom Defendant was aware.

6 Simo v. Union of Needletrades, Industrial & Textile Employees, 322 F.3d 602, 622 (9th Cir.

7 2003).

8 Plaintiff alleges that “Defendants acts, actions, conduct, and omissions were utterly

9 intolerable, atrocious, in conscious disregard of the rights of the Plaintiff entitling the Plaintiff to

10 an award for intentional infliction of emotional distress.” (ECF No. 12 at 26.) Plaintiff’s

11 allegations are insufficient to give rise to a cognizable claim for intentional infliction of emotional

12 distress as Plaintiff’s allegations are nothing more than a legal conclusion. While legal

13 conclusions can provide the framework of a complaint, they must be supported by well-pleaded

14 factual allegations. There are no allegations suggesting that Plaintiff suffered “emotional distress

15 of such substantial quality or enduring quality that no reasonable [person] in civilized society

16 should be expected to endure it.” Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1004

17 (1993) (alteration in original) (citations and internal quotation marks omitted).

18 In addition, as explained above, Plaintiff cannot seek liability by way of section 1983

19 against inmate Scott Stansell. Accordingly, Plaintiff fails to state a cognizable claim for

20 intentional infliction of emotional distress.

21 3. Assault and Battery

22 For an assault claim under California law, a plaintiff must show that (1) the defendant

23 threatened to touch him in a harmful or offensive manner; (2) it reasonably appeared to the

24 plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the

25 conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in

26 causing the harm. Tekle v. U.S., 511 F.3d 839, 855 (9th Cir. 2007) (citation omitted). For battery,

27 a plaintiff must show that (1) the defendant intentionally did an act that resulted in harmful or

28 offensive contact with the plaintiff's person; (2) the plaintiff did not consent to the contact; and

1 (3) the contact caused injury, damage, loss, or harm to the plaintiff. Id. (citation omitted).

2 Here, although Plaintiff states a cognizable failure to protect claim, he fails to state any

3 facts that Defendant Rodriguez submitted him to an use of force, let alone assault and battery. In

4 addition, for the reasons above, Plaintiff cannot sue inmate Scott Stansell for assault and battery

5 by way of section 1983. Accordingly, Plaintiff fails to state a cognizable claim for relief.

6 4. Bane Act Violation

7 The Bane Act punishes any “person or persons, whether or not acting under color of law,

8 [who] interferes by threat, intimidation, or coercion, or attempts to interfere by threat,

9 intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of

10 rights secured by the Constitution or laws of the United States, or of the rights secured by the

11 Constitution or laws of this state.” Cal Civ. Code § 52.1(a). The Bane Act also provides a cause

12 of action for anyone whose rights are harmed in this way. Id. § 52.1(b). In order to state a claim

13 under the Bane Act, a plaintiff must allege “(1) interference with or attempted interference with a

14 state or federal constitutional or legal right, and (2) the interference or attempted interference was

15 by threats, intimidation, or coercion.” Allen v. City of Sacramento, 234 Cal. App. 4th 41, 67, 183

16 Cal.Rptr.3d 654 (2015).

17 Here, there are no allegations that any action taken by a Defendant contained threats,

18 coercion, or intimidation in violation of the Bane Act. In addition, Plaintiff cannot seek liability

19 against inmate Scott Stansell for any alleged violation of the Bane Act. Accordingly, Plaintiff

20 fails to state a cognizable claim for relief.

21 H. Further Leave to Amend

22 In light of the fact that the Court informed Plaintiff previously of the relevant legal

23 standards governing his claims and he has failed to cure the pleading deficiencies with respect to

24 some claims, further leave to amend would be futile. Hartmann v. Cal. Dep’t of Corr. & Rehab.,

25 707 F.3d 1114, 1130 (9th Cir. 2013) (“A district court may deny leave to amend when

26 amendment would be futile.”); Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

27 ///

28 ///

1 IV.

2 ORDER AND RECOMMENDATIONS

3 Based on the foregoing, it is HEREBY ORDERED that the Clerk of Court shall randomly

4 | assign a District Judge to this action.

5 Further, it is HEREBY RECOMMENDED that:

6 1. This action proceed on Plaintiff's failure to protect and negligence claims against

7 | Defendant Rodriguez; and

8 2. All other claims and Defendants be dismissed from the action for failure to state a

9 | cognizable claim for relief.

10 These Findings and Recommendations will be submitted to the United States District

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

12 | (14) days after being served with these Findings and Recommendations, Plaintiff may file written

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

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

15 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

16 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

17

18 IT IS SO ORDERED. DAM Le

19 | Dated: _July 2, 2024 _ Oe

UNITED STATES MAGISTRATE JUDGE

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