Hernandez v. Pedreio, et al.

Filing 17

FINDINGS and RECOMMENDATIONS recommending that this entire action be dismissed with prejudice re 14 Amended Prisoner Civil Rights Complaint filed by Angel Hernandez ; referred to Judge Drozd; ORDER DISCHARGING 13 Order to Show Cause,signed by Magistrate Judge Sheila K. Oberto on 10/18/2017. Objections to F&R due by 11/13/2017 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANGEL HERNANDEZ,

Case No. 1:16-cv-00027-DAD-SKO (PC)

Plaintiff,

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(Doc. 14)

v.

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FINDINGS AND RECOMMENDATION
TO DISMISS AMENDED COMPLAINT
WITH PREJUDICE FOR
FAILURE/INABILITY TO STATE A
COGNIZABLE CLAIM

Defendants.

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PEDERIO, et al.,

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TWENTY-ONE (21) DAY DEADLINE

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ORDER DISHCARGING ORDER TO
SHOW CAUSE

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(Doc. 13)

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FINDINGS

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A.

Background

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Plaintiff, Angel Hernandez, is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, Plaintiff fails to state

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any cognizable claims upon which relief may be granted.

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Plaintiff filed the Complaint in this action on January 8, 2016. (Doc. 1.) The Complaint

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was screened and dismissed with leave to amend. (Doc. 10.) When Plaintiff did not file an

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amended complaint within the time provided, an order to show cause issued for Plaintiff to

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explain why this action should not be dismissed for Plaintiff’s failure to obey the Court’s order

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and to state a claim. (Doc. 13.) On April 24, 2017, Plaintiff filed the First Amended Complaint,
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which is before the Court for screening. (Doc. 14.) For the reasons discussed below, Plaintiff

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fails to state any cognizable claims, despite having previously been given the requisite pleading

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and legal standards for his claims. Thus, this action should be dismissed with prejudice and

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further leave to amend need not be extended since futile.

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B.

Screening Requirement

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

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

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

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

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

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§ 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that . . . the action or

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appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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C.

Pleading Requirements
1.

Federal Rule of Civil Procedure 8(a)

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"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited

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exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534

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U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain "a short and plain

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statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. Pro. 8(a).

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"Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and

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the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.

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

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cause of action, supported by mere conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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Plaintiff’s allegations in the First Amended Complaint are evaluated as to whether they set forth

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Asufficient factual matter, accepted as true, to >state a claim that is plausible on its face.=@ Iqbal,

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556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Plaintiff’s factual allegations are accepted as

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true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S. Secret Service, 572 F.3d
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962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557.
While Aplaintiffs [now] face a higher burden of pleadings facts . . . ,@ Al-Kidd v. Ashcroft,

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580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally

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and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations," Neitze

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v. Williams, 490 U.S. 319, 330 n.9 (1989), "a liberal interpretation of a civil rights complaint may

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not supply essential elements of the claim that were not initially pled," Bruns v. Nat'l Credit

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Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 673 F.2d 266,

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268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, Doe I v. Wal-

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Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation

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omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and

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“facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the

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plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
2.

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Linkage and Causation

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

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

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

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Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of

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substantive rights, but merely provides a method for vindicating federal rights elsewhere

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conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012)

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(citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation

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marks omitted). To state a claim, Plaintiff’s allegations are evaluated by whether alleged facts

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demonstrate the existence of a link, or causal connection, between each defendant’s actions or

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omissions and a violation of Plaintiff’s federal rights. Lemire v. California Dep’t of Corr. and

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Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir.

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2011). Plaintiff’s allegations must demonstrate that each defendant personally participated in the

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deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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D.

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Plaintiff is currently incarcerated at Kern Valley State Prison (KVSP) in Delano,

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California, but complains of events that occurred while he was held as a pretrial detainee at the

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Kings County Jail (“KCJ”) in Hanford, California. Plaintiff names KCJ Commander, Kimberly

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Pedreiro; Assistant Sheriff, Robert Jack Thayer; Sergeant S. Henderson; the Kings County Board

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of Supervisors; and Kings County Superior Court Judge Donna Tarter as Defendants in this

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action.
Plaintiff alleges that, on April 30, 2014, Sgt. Henderson placed Plaintiff in Administrative

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Summary of the First Amended Complaint

Segregation (“Ad-Seg”) at KCJ. Plaintiff asked why and Sgt. Henderson told him it was done at

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CMDR Pedreio’s direction. Plaintiff ended up being held in KCJ’s Ad-Seg for twenty-eight

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months, despite filing numerous grievances protesting that he was placed in Ad-Seg without

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notice and a hearing. Plaintiff alleges that, since he was placed in Ad-Seg without notice and a

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hearing, his rights to due process, free speech, freedom of association, and freedom from cruel

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and unusual punishment were violated.

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Despite having been informed that many of his allegations and claims were not capable of

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being corrected to state cognizable claims, Plaintiff persists in asserting the same litany of claims.

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He has made little, if any, changes to his factual allegations, and none of his claims are

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cognizable. Thus, it appears that Plaintiff is unable to correct the deficiencies in his pleading and

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the action should be dismissed without extending further leave to amend. Further, Plaintiff’s

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allegations challenging his gang classification at KCJ need not be considered since no such

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allegations were stated in his original Complaint and including them in the First Amended

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Complaint exceeds the leave to amend Plaintiff was granted. (See Doc. 10, p. 15 (prohibiting

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change of the nature of suit by adding new, unrelated claims in the first amended complaint).)

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//

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//

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//
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E.

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Legal Standards
Due Process

The Due Process Clause protects Plaintiff against the deprivation of liberty without the

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procedural protections to which he is entitled under the law. Wilkinson v. Austin, 545 U.S. 209,

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221, 125 S.Ct. 2384 (2005). To state a claim, Plaintiff must first identify the interest at stake.

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Wilkinson, 545 U.S. at 221. Liberty interests may arise from the Due Process Clause itself or

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from state law. Id. The Due Process Clause does not confer on inmates a liberty interest in

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avoiding more adverse conditions of confinement, and under state law, the existence of a liberty

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interest created by prison regulations is determined by focusing on the nature of the condition of

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confinement at issue. Id. at 221-23 (citing Sandin v. Conner, 515 U.S. 472, 481-84, 115 S.Ct.

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2293 (1995)) (quotation marks omitted). Liberty interests created by prison regulations are

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generally limited to freedom from restraint which imposes atypical and significant hardship on

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the inmate in relation to the ordinary incidents of prison life. Wilkinson, 545 U.S. at 221 (citing

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Sandin, 515 U.S. at 484) (quotation marks omitted); Myron v. Terhune, 476 F.3d 716, 718 (9th

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Cir. 2007).

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“It is plain, that the transfer of an inmate to less amenable and more restrictive quarters for

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nonpunitive reasons is well within the terms of confinement ordinarily contemplated by a prison

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sentence. Accordingly, administrative segregation is the sort of confinement that inmates should

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reasonably anticipate receiving at some point in their incarceration.” Toussaint v. McCarthy, 801

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F.2d 1080, 1091-92 (9th Cir.1986). With respect to placement in administrative segregation, due

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process requires only that prison officials hold an informal nonadversary hearing within a

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reasonable time after the prisoner is segregated, inform the prisoner of the charges against him or

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the reasons for considering segregation, and allow the prisoner to present his views. Id., 801 F.2d

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at 1100-01 (quotation marks omitted), abrogated in part on other grounds, Sandin v. Conner, 515

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U.S. 472, 115 S.Ct. 2293 (1995); accord Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003).

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Prisoners are not entitled to detailed written notice of charges, representation by counsel or

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counsel substitute, an opportunity to present witnesses, or a written decision describing the

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reasons for placing the prisoner in administrative segregation. Toussaint, 801 F.2d at 1100-01
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(quotation marks omitted). Further, due process does not require disclosure of the identity of any

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person providing information leading to the placement of a prisoner in administrative segregation.

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Id. (quotation marks omitted).

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Prisoners may be housed in Administrative Segregation to protect them from other

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inmates, to protect other inmates from the segregated prisoner, or as here, pending investigation

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of disciplinary charges, transfer, or re-classification. See Hewitt v. Helms, 459 U.S. 460, 468

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(1983) B overruled in part on other grounds by Sandin (finding no liberty interest in freedom from

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state action taken within the sentence implied).

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Here, Plaintiff’s exhibits reveal that he was placed in Ad-Seg pending investigation into

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criminal charges (see Doc. 14, pp. 9-13) and his allegations acknowledge that he was criminally

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charged in Kings County Superior Court (case no. 14CM1997) in connection with events

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surrounding an attempted murder of custody staff. Under these circumstances, Plaintiff had no

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liberty interest in remaining in the general population and thus cannot state a cognizable claim.

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Further, A[a]n inmate does not retain rights inconsistent with proper incarceration,@ and

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Afreedom of association is among the rights least compatible with incarceration.@ Overton v.

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Bazzetta, 539 U.S. 126, 131 (2003). Accordingly, A[s]ome curtailment of that freedom must be

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expected in the prison context.@ Id. Since Plaintiff does not have a cognizable claim based on his

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placement in Ad-Seg, he similarly does not have a claim based on the curtailment of his right to

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speak and associate with inmates in the general population while confined in Ad-Seg.

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3.

Younger Abstention

Plaintiff’s claims pertaining to his Ad-Seg placement are likewise not cognizable under §

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1983 if the release of Plaintiff’s legal materials to prosecutors resulted in criminal charges, for

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which proceedings are ongoing. See Younger v. Harris, 401 U.S. 37, 43-54, 91 S.Ct. 746 (1971)

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(reaffirming the long-standing principle that federal courts sitting in equity cannot, absent

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exceptional circumstances, enjoin pending state criminal proceedings). “Younger abstention is a

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jurisprudential doctrine rooted in overlapping principles of equity, comity, and federalism.” San

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Jose Silicon Valley Chamber of Commerce Political Action Committee v. City of San Jose, 546

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F.3d 1087, 1092 (9th Cir. 2008) citing Steffel v. Thompson, 415 U.S. 452, 460-73, 94 S.Ct. 1209
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(1974) (explaining the history and purposes of the doctrine); Younger, 401 U.S. at 43-49

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(discussing the jurisprudential background of abstention); Gilbertson v. Albright, 381 F.3d 965,

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970–75 (9th Cir.2004) (en banc) (tracing the Supreme Court's application of the doctrine).
Federal courts “must abstain under Younger if four requirements are met: (1) a state-

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initiated proceeding is ongoing; (2) the proceeding implicates important state interests; (3) the

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federal plaintiff is not barred from litigating federal constitutional issues in the state proceeding;

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and (4) the federal court action would enjoin the proceeding or have the practical effect of doing

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so, i.e., would interfere with the state proceeding in a way that Younger disapproves.” Id. citing

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Gilbertson, 381 F.3d at 978; AmerisourceBergen Corp. v. Roden (“ABC ”), 495 F.3d 1143, 1149

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(9th Cir.2007); see also Green v. City of Tucson, 255 F.3d 1086, 1093 (9th Cir.2001) (en banc)

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(“[I]n addressing Younger abstention issues, district courts must exercise jurisdiction except when

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specific legal standards are met, and may not exercise jurisdiction when those standards are met;

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there is no discretion vested in the district courts to do otherwise.”), overruled in other part by

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Gilbertson, 381 F.3d 965. “An exception to that general rule exists if there is a ‘showing of bad

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faith, harassment, or some other extraordinary circumstance that would make abstention

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inappropriate.’ ” Id., quoting Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457

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U.S. 423, 435, 102 S.Ct. 2515 (1982).
The criminal action against Plaintiff in Kern County Superior Court (case no.

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14CM1997), which Plaintiff was placed in Ad-Seg pending investigation, is ongoing.1 There are

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few if any more important state interests than enforcing its criminal laws. Plaintiff states no

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allegations to show that he would be barred from litigating federal constitutional issues in the

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state proceeding and this Court finds none. A finding in Plaintiff’s favor in this action would

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have the practical effect of undermining the State’s criminal action against Plaintiff since it would

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necessarily hinge on the propriety of the investigation into the criminal charges against Plaintiff --

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which Younger disallows. Plaintiff fails to state any allegations to suggest, let alone show, that

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bad faith, harassment, or other extraordinary circumstance exists to make abstention

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Judicial notice is taken of the Kings County Superior Court record in case number 14CM1997. Fed. Rules Evid.
Rule 201, 28 U.S.C.A.; Harris v. County of Orange, 682 F.3d 1126, 1131-32 (2012).

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inappropriate. Thus, this Court must abstain from deciding Plaintiff’s claims regarding his

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placement in Ad-Seg under Younger.

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4.

Cruel & Unusual Punishment

The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v.

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Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison

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officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing,

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sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir.

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2000) (quotation marks and citations omitted). To establish a violation of the Eighth

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Amendment, the prisoner must “show that the officials acted with deliberate indifference. . . .”

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Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v.

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County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)).

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The deliberate indifference standard involves both an objective and a subjective prong.

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First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer at 834.

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Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate

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health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995).

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Objectively, extreme deprivations are required to make out a conditions of confinement

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

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sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian,

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503 U.S. 1, 9 (1992). Although the Constitution “ ‘does not mandate comfortable prisons,’ ”

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Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes, 452 U.S. at 349), “inmates are

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entitled to reasonably adequate sanitation, personal hygiene, and laundry privileges, particularly

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over a lengthy course of time,” Howard, 887 F.2d at 137.

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Some conditions of confinement may establish an Eighth Amendment violation “in

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combination” when each would not suffice alone, but only when they have a mutually enforcing

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effect that produces the deprivation of a single, identifiable human need such as food, warmth, or

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exercise -- for example, a low cell temperature at night combined with a failure to issue blankets.

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Wilson, 501 U.S. at 304-05(comparing Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979)
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(outdoor exercise required when prisoners otherwise confined in small cells almost 24 hours per

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day), with Clay v. Miller, 626 F.2d 345, 347 (4th Cir. 1980) (outdoor exercise not required when

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prisoners had regular access to dayroom)). To say that some prison conditions may interact in

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this fashion is far from saying that all prison conditions are a seamless web for Eighth

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Amendment purposes. Id. Amorphous “overall conditions” cannot rise to the level of cruel and

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unusual punishment when no specific deprivation of a single human need exists. Id. Further,

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temporarily unconstitutional conditions of confinement do not necessarily rise to the level of

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constitutional violations. See Anderson, 45 F.3d 1310, ref. Hoptowit, 682 F.2d at 1258

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(abrogated on other grounds by Sandin, 515 U.S. 472 (in evaluating challenges to conditions of

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confinement, length of time the prisoner must go without basic human needs may be

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considered)). Thus, Plaintiff’s factual allegations regarding the conditions to which he was

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subjected during his confinement on management cell/ASU must be evaluated to determine

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whether they demonstrate a deprivation of a basic human need individually or when combined.

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Plaintiff alleges that he was in Ad-Seg for “20 plus months” and that while in Ad-Seg, he

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was confined to his cell 23 hours a day; the one hour out of his cell was for dayroom, outside

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yard, phone call, shower, and cell cleaning. (Doc. 14, pp. 5-6.) Plaintiff alleges that any

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conversation was like a yelling contest with other inmates. (Id.) Plaintiff complains that his cell

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had no window and that the exercise yard is a concrete yard a little bigger than a cell that was

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covered by a black tarp. (Id.) Plaintiff alleges he was held with inmates who have mental

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problems causing them to throw feces, walk around covered in feces, put their urine on the

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phones and tables, dig through garbage cans, defecate in the showers, and scream at all time of

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the day and night. (Id.) Plaintiff alleges he was fully restrained on every movement and was

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subjected to hot and cold temperatures in his cell, including cold showers and that his medical

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needs were “an issue, a rash on [his] scalp, back pain, etc.” (Id.) Plaintiff also alleges that, in

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Ad-Seg, he could not go to church, get a job, and attend programs, school, drug & alcohol classes,

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he ate in his cell, and all of his visits were non-contact via a T.V. screen. (Id.)

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These living conditions are certainly not desirable. However, they do not show
deprivation of a basic human necessity, let alone that any of the named defendants were
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subjectively aware of any such deprivation and failed to take corrective action. Plaintiff thus fails

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to state a cognizable claim under the Eighth Amendment.

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5.

Immunity
a.

Judicial Immunity

Plaintiff’s allegations against Judge Tarter are unavailing. Judge Tarter is entitled to

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absolute immunity from damages for judicial acts, absent very limited exceptions not presented

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here. Cleavinger v. Saxner, 474 U.S. 193, 199-200, 106 S.Ct. 496 (1985); Stump v. Sparkman,

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435 U.S. 349, 355-56, 98 S.Ct. 1099 (1978); Crowe v. County of San Diego, 608 F.3d 406, 430

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(9th Cir. 2010); Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir.

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2003); Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988).
b.

Quasi-judicial Immunity

The Kings County Board of Supervisors is entitled to quasi-judicial immunity for their
ruling on the claim filed by Plaintiff under the California Tort Claims Act.
The Supreme Court has extended absolute judicial immunity to other public officials who

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perform activities that are “functionally comparable” to those of judges. Butz v. Economou, 438

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U.S. 478, 513, 98 S.Ct. 2894 (1978); see also Sellars v. Procunier, 641 F.2d 1295, 1303 (9th

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Cir.1981) (“If an official’s role is functionally equivalent to that of a judge, the official will be

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granted equivalent immunity.”). Such activities are sometimes referred to as “quasi-judicial.”

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See, e.g., Imbler v. Pachtman, 424 U.S. 409, 420, 96 S.Ct. 984 (1976). “Absolute immunity

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flows not from rank or title . . . but from the nature of the responsibilities of the individual

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official.” Cleavinger v. Saxner, 474 U.S. 193, 201, 106 S.Ct. 496 (1985).

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The Court has outlined a list of factors to consider in determining whether an official's

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functions are quasi-judicial in nature: (1) the need to insulate the official from harassment or

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intimidation; (2) the presence of procedural safeguards to reduce unconstitutional conduct; (3)

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insulation from political influence; (4) the importance of precedent in the official's decision; (5)

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the adversary nature of the process; and (6) whether error may be corrected on appeal. Id. at 202,

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106 S.Ct. 496 (citing Butz, 438 U.S. at 512, 98 S.Ct. 2894). This list of factors is non-exhaustive,

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however, and an official need not satisfy every factor to be entitled to absolute quasi-judicial
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immunity. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 923 (9th Cir.2004) (noting that

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the Butz factors are “nonexclusive”).
There is a great need to protect public officials from harassment or intimidation.

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Unconstitutional conduct and error are subject to review via the courts, and although their

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decisions do not necessarily equate to precedent, the decision is the initial step in an adversarial

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process between the municipal entity they represent and the injured party. Thus, Plaintiff cannot

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state a cognizable claim against the Kings County Board of Supervisors.
6.

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Inmate Grievances

Plaintiff appears to continue to grieve the processing and reviewing of his grievances

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pertaining to his placement in Ad-Seg at KCJ. However, he is not entitled to a specific grievance

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procedure. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in

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processing of appeals because no entitlement to a specific grievance procedure), citing Mann v.

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Adams, 855 F.2d 639, 640 (9th Cir. 1988). “[A prison] grievance procedure is a procedural right

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only, it does not confer any substantive right upon the inmates.” Azeez v. DeRobertis, 568 F.

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Supp. 8, 10 (N.D. Ill. 1982) accord Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see

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also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure

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confers no liberty interest on prisoner). “Hence, it does not give rise to a protected liberty interest

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requiring the procedural protections envisioned by the Fourteenth Amendment.” Azeez v.

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DeRobertis, 568 F. Supp. at 10; Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986).
Actions in reviewing prisoner’s administrative appeal generally cannot serve as the basis

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for liability under a ' 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who

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knows about a violation of the Constitution, and fails to cure it, has violated the Constitution is

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not correct. “Only persons who cause or participate in the violations are responsible. Ruling

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against a prisoner on an administrative complaint does not cause or contribute to the violation.”

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Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir.2005) accord George v. Smith, 507 F.3d 605,

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609-10 (7th Cir. 2007); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance v. Peters,

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97 F.3d 987, 992-93 (7th Cir.1996).

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Plaintiff may “state a claim against a supervisor for deliberate indifference based upon the

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supervisor’s knowledge of and acquiescence in unconstitutional conduct by his or her

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subordinates.” Starr v. Baca, 652 F.3d 1202, 1207 (2011). However, as discussed above,

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Plaintiff fails to allege unconstitutional conduct by subordinates so as to be able to state a claim

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based upon the supervisor’s knowledge of and acquiescence in unconstitutional conduct by such

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subordinates.
RECOMMENDATION

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Plaintiff’s First Amended Complaint fails to state a cognizable claim against any

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of the named Defendants. Given Plaintiff’s persistence in attempting to state a causes of

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action that he as previously been advised are not actionable, it appears futile to allow

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further amendment. Plaintiff should not be granted leave to amend as the defects in his

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pleading are not capable of being cured through amendment. Akhtar v. Mesa, 698 F.3d

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1202, 1212-13 (9th Cir. 2012).

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Accordingly, it is HEREBY RECOMMENDED that this entire action be
dismissed with prejudice.
These Findings and Recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. '

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636(b)(l). Within twenty-one (21) days of service of these Findings and

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Recommendations, Plaintiff may file written objections with the Court. The document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may result in

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the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. Nov.

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18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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ORDER
On April 20, 2017, an order issued for Plaintiff to show cause why this action

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should not be dismissed based on his failure to obey the Order which dismissed

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Plaintiff’s original Complaint and granted him leave to file an amended complaint. (Doc.

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13.) Plaintiff’s response, filed a few days after the First Amended Complaint, is deemed
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sufficient. (Doc. 15.)
Accordingly, the order to show cause which issued on April 20, 2017, is

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HEREBY DISCHARGED.

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IT IS SO ORDERED.
Dated:

October 18, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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