Gaines v. Lwin, et al.
Filing
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FINDINGS and RECOMMENDATIONS to: 1) Dismiss Federal Claim without Leave to Amend; and 2) Decline to Exercise Supplemental Jurisdiction over State Law Claim; Fourteen-Day Deadline signed by Magistrate Judge Michael J. Seng on 9/20/2016. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 10/7/2016. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MARY LEE GAINES,
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Plaintiff,
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CASE No. 1:16-cv-0168-LJO-MJS (PC)
FINDINGS AND RECOMMENDATIONS
TO:
v.
1) DISMISS FEDERAL CLAIM WITHOUT
LEAVE TO AMEND; AND
S. LWIN, et al.,
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Defendants.
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2) DECLINE TO EXERCISE
SUPPLEMENTAL JURISDICTION
OVER STATE LAW CLAIM
(ECF NO. 16)
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FOURTEEN-DAY DEADLINE
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in a civil rights
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action pursuant to 42 U.S.C. § 1983. Plaintiff’s second amended complaint is before the
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Court for screening.
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I.
Screening Requirement
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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has
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raised claims that are legally “frivolous, malicious,” or that fail to state a claim upon which
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relief may be granted, or that seek monetary relief from a defendant who is immune from
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such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion
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thereof, that may have been paid, the court shall dismiss the case at any time if the court
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determines that . . . the action or appeal . . . fails to state a claim upon which relief may
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be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
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II.
Pleading Standard
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Section 1983 “provides a cause of action for the deprivation of any rights,
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privileges, or immunities secured by the Constitution and laws of the United States.”
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Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983).
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Section 1983 is not itself a source of substantive rights, but merely provides a method for
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vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94
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(1989).
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To state a claim under § 1983, a plaintiff must allege two essential elements:
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(1) that a right secured by the Constitution or laws of the United States was violated and
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(2) that the alleged violation was committed by a person acting under the color of state
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law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d
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1243, 1245 (9th Cir. 1987).
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A complaint must contain “a short and plain statement of the claim showing that
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the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations
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are not required, but “[t]hreadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief
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that is plausible on its face.” Id. Facial plausibility demands more than the mere
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possibility that a defendant committed misconduct and, while factual allegations are
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accepted as true, legal conclusions are not. Id. at 677-78.
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III.
Relevant Background and Plaintiff’s Allegations
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In the previous iterations of her pleading, Plaintiff, in violation of the Federal Rules
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of Civil Procedure, brought a litany of unrelated claims against a host of Defendants.
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George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (citing 28 U.S.C. § 1915(g)). These
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pleadings were dismissed with notice of applicable pleading requirements and leave to
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amend.
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In this second amended complaint, Plaintiff focuses her claim on a single incident
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involving Defendant Berber, the Recreation Director of the Central California Women’s
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Facility where Plaintiff is housed. Plaintiff also names Dr. Lwin in the caption of the
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complaint. This complaint may be fairly summarized as follows:
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On March 12, 2015, Plaintiff was walking slowly to the prison library using her
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medical walker while being escorted by Defendant Berber. Defendant told Plaintiff to sit
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atop the walker. When Plaintiff did so, Defendant began to push the walker very quickly
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while talking to another inmate. At some point, the walker hit a hole in the floor and
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Plaintiff fell off the walker onto the pavement, resulting in injury and continuing pain.
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Plaintiff brings claims under the Eighth Amendment and a state law negligence
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claim. She seeks damages and injunctive relief.
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IV.
Analysis
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1. Linkage
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Under Section 1983, Plaintiff must demonstrate that each Defendant personally
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participated in the deprivation of her rights. See Jones v. Williams, 297 F.3d 930, 934
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(9th Cir. 2002). In other words, there must be an actual connection or link between the
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actions of the Defendants and the deprivation alleged to have been suffered by Plaintiff.
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See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 695 (1978). Plaintiff names Dr.
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Lwin in the caption of the second amended complaint but asserts no charging
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allegations as to this Defendant. Accordingly, Dr. Lwin should be dismissed from this
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action.
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2. Eighth Amendment Deliberate Indifference
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The Eighth Amendment prohibits cruel and unusual punishment. As applied to
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prisoners, it prohibits inhumane methods of punishment and inhumane conditions of
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confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Although
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prison conditions may be restrictive and harsh, prison officials must provide prisoners
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with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v.
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Brennan, 511 U.S. 825, 832-33 (1994) (internal citations and quotations omitted).
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To establish a violation of this duty, the prisoner must establish that prison
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officials were “deliberately indifferent to a serious threat to the inmate’s safety.” Farmer,
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511 U.S. at 834. The Supreme Court has explained that “deliberate indifference entails
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something more than mere negligence ... [but] something less than acts or omissions for
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the very purpose of causing harm or with the knowledge that harm will result.” Id. at 835.
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The Court defined this “deliberate indifference” standard as equal to “recklessness,” in
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which “a person disregards a risk of harm of which he is aware.” Id. at 836-37.
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The deliberate indifference standard involves both an objective and a subjective
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prong. First, the alleged deprivation must be, in objective terms, “sufficiently serious.”
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Farmer, 511 U.S. at 834. Second, subjectively, the prison official must “know of and
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disregard an excessive risk to inmate health or safety.” Id. at 837; Anderson v. County of
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Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). To prove knowledge of the risk, however, the
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prisoner may rely on circumstantial evidence; in fact, the very obviousness of the risk
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may be sufficient to establish knowledge. Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70
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F.3d 1074, 1077 (9th Cir. 1995).
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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d
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1051, 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be
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aware of the facts from which the inference could be drawn that a substantial risk of
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serious harm exists,’ but that person ‘must also draw the inference.’” Id. at 1057 (quoting
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Farmer, 511 U.S. at 837). “‘If a prison official should have been aware of the risk, but
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was not, then the official has not violated the Eighth Amendment, no matter how severe
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the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th
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Cir. 2002)).
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Plaintiff here alleges that Defendant Berber pushed Plaintiff along on a walker too
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quickly and when the walker hit a hole in the floor, Plaintiff fell off and was injured. There
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is no claim, however, that Defendant Berber pushed Plaintiff into the hole deliberately or
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otherwise knew that there existed an excessive risk of harm to Plaintiff’s safety. Such
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allegations, at best, assert mere carelessness or negligence and, as such, are
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insufficient to constitute a cognizable Eighth Amendment claim. Accordingly, the second
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amended complaint must be dismissed.
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3.
Supplementary Jurisdiction
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Plaintiff also asserts a state law negligence claim. Attachments to the second
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amended complaint demonstrate that Plaintiff attempted to exhaust her administrative
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remedies as to Defendant’s conduct, and filed a claim postmarked January 29, 2016,
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with the California Victims Compensation and Government Claims Board (“the Claims
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Board”). ECF No. 16 at 21.
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Under the California Tort Claims Act, filing a tort claim within the time and in the
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manner prescribed by statute is a prerequisite to filing a lawsuit against any state
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employee or agency. See Cal. Gov't Code §§ 905.2, 911.2 (West 2016); Cal. Gov't Code
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§§ 945.4, 950.2 (West 2016). A personal injury claim, such as that asserted here, must
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be filed within six months of when the cause of action accrues. Cal. Gov't Code § 911.2.
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This applies to “injur[ies] resulting from an act or omission [of a public employee] in the
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scope of his employment as a public employee ....” Cal. Gov't Code § 950.2. It appears
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Plaintiff’s claim was filed more than six months after the March 12, 2015, incident
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involving Defendant Berber. It also does not appear that Plaintiff has received a
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response yet from the Claims Board.
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In any event, in the absence of a cognizable federal claim, the Court will
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recommend that supplemental jurisdiction not be exercised over the state law claim. 28
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U.S.C. § 1367(a); Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805
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(9th Cir. 2001); see also Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th
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Cir. 1994). “When . . . the court dismisses the federal claim leaving only state claims for
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resolution, the court should decline jurisdiction over the state claims and dismiss them
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without prejudice.” Les Shockley Racing v. National Hot Rod Ass’n, 884 F.2d 504, 509
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(9th Cir. 1989).
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V.
Conclusion and Order
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Plaintiff’s second amended complaint fails to state a claim. Under Rule 15(a) of
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the Federal Rules of Civil Procedure, a party may amend the party's pleading once as a
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matter of course at any time before a responsive pleading is served. Otherwise, a party
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may amend only by leave of the court or by written consent of the adverse party, and
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leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). “Rule 15(a) is
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very liberal and leave to amend ‘shall be freely given when justice so requires.’“
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AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006)
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(quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where
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the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3)
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produces an undue delay in the litigation; or (4) is futile.” Id.
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After careful consideration of Plaintiff’s allegations and the attachments to the
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pleading, which include Plaintiff’s administrative appeal related to her claim, the
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undersigned has determined that amendment would be futile because Plaintiff’s
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allegations simply do not rise to the level of a constitutional violation. On this ground, the
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Court will recommend that the pleading be dismissed without leave to amend.
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Accordingly, it is HEREBY RECOMMENDED that:
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1. Plaintiff’s second amended complaint be dismissed without leave to amend for
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failure to state a federal claim, and
2. The Court decline to exercise supplemental jurisdiction over Plaintiff’s state
law negligence claim.
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These Findings and Recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
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fourteen (14) days after being served with these Findings and Recommendations, any
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party may file written objections with the Court and serve a copy on all parties. Such a
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document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” Any reply to the objections shall be served and filed within fourteen
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(14) days after service of the objections. The parties are advised that failure to file
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objections within the specified time may result in the waiver of rights on appeal.
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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923
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F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
September 20, 2016
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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