Shehee v. Perez et al

Filing 39

FINDINGS and RECOMMENDATIONS Regarding Dismissal of Certain Claims and Defendants, signed by Magistrate Judge Barbara A. McAuliffe on 2/27/18. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY ELL SHEHEE,

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Plaintiff,

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v.
PEREZ, et al.,

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Case No. 1:16-cv-01346-AWI-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS
(ECF Nos. 31, 38)

Defendants.

FOURTEEN (14) DAY DEADLINE

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I.

Background
Plaintiff Gregory Ell Shehee (“Plaintiff”) is a county jail inmate proceeding pro se and in

forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On December 4, 2017, the Court screened Plaintiff’s first amended complaint and found

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that Plaintiff stated a cognizable claim for excessive force in violation of the Due Process Clause

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of the Fourteenth Amendment against Defendant Faith Perez for the purported two incidents

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which occurred in November 2014 and the one incident on February 8, 2015, and a cognizable

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claim for failure to protect in violation of the Due Process Clause of the Fourteenth Amendment

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against Defendant Lain, but failed to state any other cognizable claims against any other

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defendants. The Court ordered Plaintiff to either file a second amended complaint or notify the

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Court of his willingness to proceed only on the cognizable claims. (ECF No. 31.) Following

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several extensions of time, on February 23, 2018, Plaintiff requested that the Court proceed on the

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claims against Defendants Perez and Lain. (ECF No. 38.)
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II.

Screening Requirement and Standard

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

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

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

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

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relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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

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

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

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

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

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

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

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

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

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

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

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

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

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III.

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Allegations in Complaint
Plaintiff is currently housed at Fresno County Jail. The incidents at issue in this litigation

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occurred while Plaintiff was housed in Coalinga State Hospital, when he was civilly committed.

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Plaintiff names the following defendants: Faith Perez, Psychiatric Technician; Jack Carter, Chief

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of Police, Coalinga, Pamela Ahlin, Director of Department of State Hospitals; Audrey King,

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Executive Director of State Hospitals. In this amended complaint, Plaintiff also adds numerous

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other defendants: Jirri Lain,1 Psych Technician, S. Perryman, B. Price, June (unknown last name),

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The Court cannot determine from Plaintiff’s handwriting if the last name is Lan or Lain or Law. The Court will
refer to “Defendant Lain.”

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K. Earl, J. Lain, Murphy (unknown last name), K. Reed, R. Gonzalez, Newmente, D. Landrum,

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R. Smith, Amber, Romero, Carlos, Veronica, J. Taylor, and possibly other defendants.2 All

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defendants are sued in their individual and official capacities. Plaintiff’s allegations are as

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follows:

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As best the Court can decipher from the mostly illegible writing, Plaintiff alleges a sexual

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environment at the State Hospitals where there were patient-staff sex rings. Plaintiff alleges these

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sex rings existed from 2010 to about December 2015. He was concerned and all staff and many

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patients were involved and was known and condoned or should have been known and was

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condoned by executives, administrators and staff.

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Plaintiff alleges that he was sexually abused by Defendant Perez. As best the Court can

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determine from reviewing the writing, Plaintiff had a conversation with Defendant Perez in 2014

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and she said she likes chocolate. They went down the hall and no other staff or nurses looked up

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from their computers. Defendant Perez walked into Plaintiff’s room and pulled the door closed.

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She performed a sex act on him and they had sex and she left the room. In what appears to be a

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separate incident, Plaintiff alleges that Defendant Perez performed a sex act on him in November

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10 or 11, 2014 and they had intercourse. Plaintiff alleges that defendant Perez sexually assaulted

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him again on February 8, 2015. Plaintiff alleges she was custody staff and he was in fear of her.

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As best the Court can determine, Plaintiff complains of three incidences of sexual abuse by

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Defendant Perez and that he engaged in these sex acts because he was afraid, and she threatened

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to write bad and false things in his Health Medical Records, which could affect his review of his

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civil commitment.
On November 13, 2014, Plaintiff “enlightened” Defendant Jirri Lain “of the sexual

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abuse . . . from defendant Faith Perez.” Plaintiff alleges that Defendant Perez saw Plaintiff with

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Defendant Lain, and Defendant Perez cursed at him and threatened to have more sex with

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Plaintiff. As best the Court can determine, Plaintiff alleges Defendant Perez continued to threaten

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him. Defendant Perez tried to get close to another patient from 11/13/14 throughout December

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Plaintiff also attaches a list of names of persons “involved.” The list has some 60+ additional names. (ECF No. 30,
p. 42 (Exh. G).) It is unclear if Plaintiff means to name all of these individuals as defendants.
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2014, causing Plaintiff mental and emotional distress. On 2/8/15, Defendant Perez forced him to

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have sex with her on Unit 1, which Plaintiff did out of fear of retaliation because she said that she,

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as a mandated medical reporter, would write bad or false things in his mental health records.

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Plaintiff alleges that he was forced to have sex with Defendant Perez 3 times, against his will out

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of fear of retaliation and which caused him emotional pain and suffering.

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Plaintiff alleges from 2013 to February 8, 2015, the administrators denied plaintiff a basic

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review of Patient’s rights and bedroom decoration and walks throughout the hospital. Plaintiff

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could not communicate with administrators.

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Plaintiff alleges that Defendant J. Carter, as the Chief of the State Hospitals, is responsible

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for the training and supervision of the employees and responsible for their conduct and for their

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unlawful sexual conduct with patients from October 2012 throughout 2013 and through February

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8, 2015. Defendant J. Carter failed to protect Plaintiff. Plaintiff alleges that Defendant Ahlin, as

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the Executive Director from 2008–13, has a duty to protect him and is responsible for the health

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and safety of all patients, but failed to protect him. Defendant received information from Plaintiff

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about sex rings, and Defendant Audrey King from 2014–2015 knew of the sex rings. (ECF No.

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30, p. 26–27 of 112.) As best the Court can decipher, Plaintiff alleges that all of the staff,

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administrators and executives knew of the sex rings and did nothing. The allegations are

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repetitive and confusing and difficult to read with the pencil used by Plaintiff. Plaintiff also

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attaches some 90 pages of mostly illegible handwritten documents.

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IV.

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Discussion
A.

Pleading Deficiencies
1.

Federal Rule of Civil Procedure 8

Pursuant to Federal Rule of Civil Procedure 8, 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. P. 8(a). As

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noted above, detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

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556 U.S. at 678 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as

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true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678 (quoting
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Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are

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not. Id.; see also Twombly, 550 U.S. at 556–57; Moss, 572 F.3d at 969.

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Plaintiff's complaint is neither short nor plain. Plaintiff's complaint totals twenty-five

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pages of nearly illegible statements and over 90 pages of exhibits. In fact, the amended complaint

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is less clear than the original complaint. Plaintiff's amended complaint does not clearly set forth

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the factual allegations underlying his claims; purported facts are interspersed with conclusory

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recitations of legal elements, which are repeated throughout the complaint. A short plain

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statement of the facts is just that, short and plain. In addition, Plaintiff need not allege in graphic

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detail each of the 3 sexual encounters with Defendant Perez. It is sufficient to state the date and

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that he was forced to engage in a sexual act without his consent. Plaintiff's complaint must be full

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and complete in and of itself, and the Court will not refer to other pleadings or exhibits to piece

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together potential claims.

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2.

Federal Rule of Civil Procedure 18

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Plaintiff is raising numerous claims based on discrete events against different defendants.

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Plaintiff may not bring unrelated claims against unrelated parties in a single action. Fed. R. Civ.

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P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507

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F.3d 605, 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as

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(1) the claim arises out of the same transaction or occurrence, or series of transactions and

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occurrences, and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2);

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Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Ins. Co. of N.

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Amer., 623 F.3d 1371, 1375 (9th Cir. 1980). O nly if the defendants are properly joined under

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Rule 20(a) will the Court review the other claims to determine if they may be joined under Rule

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18(a), which permits the joinder of multiple claims against the same party.

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Plaintiff may not assert multiple claims against unrelated defendants in this action.

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Plaintiff appears to allege an overarching conspiracy between various public officials at the State

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Hospital system as to the alleged “sex rings.” However, these allegations are improperly joined

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with claims of specific acts of sexual abuse by Defendant Perez. Further, any of Plaintiff’s

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purported claims as to violation of Victim Rights or of Patient Rights are not properly joined in
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this action.
3.

Linkage and Causation

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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. Cty. of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.

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

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rights, but merely provides a method for vindicating federal rights elsewhere conferred.”

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Crowley v. Nev. ex rel. Nev. Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) (citing Graham v.

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Connor, 490 U.S. 386, 393–94 (1989)) (internal quotation marks omitted). To state a claim,

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Plaintiff must allege facts demonstrating the existence of a link, or causal connection, between

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each defendant’s actions or omissions and a violation of his federal rights. Lemire v. Cal. Dep’t

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of Corr. & Rehab., 726 F.3d 1062, 1074–75 (9th Cir. 2013); Starr v. Baca, 652 F.3d 1202,

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1205−08 (9th Cir. 2011).

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Plaintiff's allegations must demonstrate that each defendant personally participated in the

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deprivation of his rights. Jones, 297 F.3d at 934. This requires the presentation of factual

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allegations sufficient to state a plausible claim for relief against each defendant. Iqbal, 556 U.S.

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at 678–79; Moss, 572 F.3d at 969. The mere possibility of misconduct falls short of meeting this

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plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. However, prisoners

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proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed

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and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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Plaintiff has named what looks like every employee, administrator and executive for the

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State Hospitals. Plaintiff has failed to link each person to the alleged wrongful conduct by

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Defendant Perez.

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4.

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Official Capacity

Plaintiff sues each Defendant in their individual capacity and in their official capacity.

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“The Eleventh Amendment bars suits for money damages in federal court against a state, its

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agencies, and state officials in their official capacities.” Aholelei v. Dep’t. of Pub. Safety, 488

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F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). Suits for injunctive relief are also generally
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barred. See Nat’l Audubon Soc’y v. Davis, 307 F.3d 835, 847 (9th Cir. 2002). However, the

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Eleventh Amendment does not bar suits seeking damages against state officials in their personal

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capacities, Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir.

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2003), or suits for injunctive relief brought against state officials in their official capacities,

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Austin v. State Indus. Ins. Sys., 939 F.2d 676, 680 n.2 (9th Cir. 1991).

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Thus, Plaintiff may only proceed against any defendant for money damages in their
individual capacity.

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5.

Supervisory Liability

To the extent Plaintiff seeks to hold Defendants Audrey King, Pamela Ahlin, and Jack

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Carter (or any other defendant) liable based upon their supervisory positions, he may not do so.

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Liability may not be imposed on supervisory personnel for the actions or omissions of their

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subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676–77; Simmons v.

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Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d

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1218, 1235 (9th Cir. 2009); Jones, 297 F.3d at 934. Supervisors may be held liable only if they

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“participated in or directed the violations, or knew of the violations and failed to act to prevent

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them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202,

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1205–06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Supervisory

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liability may also exist without any personal participation if the official implemented “a policy so

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deficient that the policy itself is a repudiation of the constitutional rights and is the moving force

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of the constitutional violation.” Redman v. Cty. of San Diego, 942 F.2d 1435, 1446 (9th Cir.

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1991) (citations and quotations marks omitted), abrogated on other grounds by Farmer v.

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Brennan, 511 U.S. 825 (1970).

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Plaintiff has not alleged that these Defendants were personally involved in an alleged
constitutional deprivation, or that any of them instituted a deficient policy.

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B.

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

Excessive Force

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). The “rights of civilly committed persons are protected by the Due Process Clause of the
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Fourteenth Amendment and not the Cruel and Unusual Punishment Clause of the Eighth

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Amendment.” Smith v. Napa State Hosp., No. CV 16-7700-JAK (KK), 2016 WL 6892137, at *5

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(C.D. Cal. Nov. 22, 2016). This due process standard recognizes the state is entitled to hold such

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a person in custody, and that the detainee’s confinement raises “concerns similar to those raised

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by the housing of pretrial detainees, such as the legitimate institutional interest in the safety and

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security of guards and other individuals in the facility, order within the facility, and the efficiency

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of the facility's operations.” Andrews v. Neer, 253 F.3d 1052, 1061 (9th Cir. 2001) (citing

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Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989)).

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The standard applicable to Fourteenth Amendment excessive force cases is the same as

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the Fourth Amendment “objective” test, rather than the often harder-to-prove Eighth Amendment

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“subjective” standard. Kingsley v. Hendrickson, __ U.S. __, 135 S. Ct. 2466, 2470 (2015). Thus,

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the inquiry here, because Plaintiff was civilly committed, is whether the defendants’ “actions are

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‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard

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to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). The

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gravity of a particular intrusion on an individual’s Fourth Amendment interests depends on “the

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type and amount of force inflicted.” Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994). “[E]ven

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when some force is justified the amount actually used may be excessive.” Blankenhorn v. City of

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Orange, 485 F.3d 463, 477 (9th Cir. 2007) (citations and internal quotation marks omitted); see

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also Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002).

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A sexual assault on an inmate is deeply offensive to human dignity. Schwenk v.

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Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000). Even under the more stringent Eighth

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Amendment standard, sexual abuse of prisoners has been held to constitute cruel and unusual

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punishment. Id. at 1197 (“In the simplest and most absolute of terms . . . prisoners [have a clearly

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established Eighth Amendment right] to be free from sexual abuse . . . .”).

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Plaintiff alleges that he was sexually abused by Defendant Perez on three different

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occasions. Plaintiff alleges that on February 8, 2015, Defendant Faith Perez forced plaintiff into

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having sex with her on Unit 1. Plaintiff alleges two other incidents in November 2014. Liberally

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construing the complaint, Plaintiff has stated a claim for excessive force in violation of the Due
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Process clause of the Fourteenth Amendment for the incident on February 8, 2015 and the two

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incidents in November 2014.

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C.

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Officials have a duty “to take reasonable measures to guarantee the safety” of those in

Failure to Protect

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their care, which has been interpreted to include a duty to provide for their protection. Labatad v.

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Corrs. Corp. of Amer., 714 F.3d 1155, 1160 (citing Farmer, 511 U.S. at 832–33; Hearns v.

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Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)). To establish a violation of this duty, a plaintiff

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must “show that the prison officials acted with deliberate indifference.” Castro v. Cty. of L.A.,

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833 F.3d 1060, 1068 (9th Cir. 2016). A civil detainee need only show that a prison official

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purposely or knowingly subjected him to a risk of serious harm that was objectively unreasonable

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and need not show the defendant’s subjective state of mind. Castro, 833 F.3d at 1069 (citing

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Kingsley, 135 S. Ct. at 2472–73).

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The elements of a detainee’s Fourteenth Amendment failure to protect claim against an
individual officer are as follows:
(1) The defendant made an intentional decision with respect to the conditions
under which the plaintiff was confined;
(2) Those conditions put the plaintiff at substantial risk of suffering serious harm;
(3) The defendant did not take reasonable available measures to abate that risk,
even though a reasonable officer in the circumstances would have appreciated
the high degree of risk involved—making the consequences of the defendant's
conduct obvious; and
(4) By not taking such measures, the defendant caused the plaintiff’s injuries.
Castro, 833 F.3d at 1071.
“With respect to the third element, the defendant’s conduct must be objectively

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unreasonable, a test that will necessarily turn[ ] on the facts and circumstances of each particular

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case.” Id. at 1071 (internal quotations omitted).

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Plaintiff states a cognizable claim against Defendant Lain. Plaintiff alleges that he told

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Defendant Lain on November 13, 2014 about the sexual abuse from Defendant Perez and

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Defendant Lain did not protect him. Plaintiff states a cognizable claim for failure to protect.

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Plaintiff fails to state sufficient factual allegations to support a claim for failure to protect
against any other defendant, including Defendants King, Ahlin, or Carter. The Court cannot
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decipher from the illegible allegations who purportedly failed to protect Plaintiff. For each

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Defendant Plaintiff claims is responsible, Plaintiff fails to allege a factual basis for the Court to

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plausibly conclude that the Defendant did not take reasonable measures to protect Plaintiff from

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Defendant Perez and failed to protect him from Defendant Perez. Plaintiff’s conclusory

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allegation that a defendant “knew” or had some generalized knowledge of purported “sex rings”

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is insufficient.

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Plaintiff also makes some allegations about an investigation following his complaints, and

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attaches various documents. The Court cannot decipher from the allegations or the attachments

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the circumstances of such an investigation and whether that provided sufficient notice to any of

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the supervisory defendants, such that it would support a claim for failure to protect.

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Regardless, to the extent Plaintiff is dissatisfied with the outcome or adequacy of an

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investigation, that is not a basis for a plausible due process claim. See Gomez v. Whitney, 757

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F.2d 1005, 1006 (9th Cir. 1985) (per curiam) (“[W]e can find no instance where the courts have

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recognized inadequate investigation as sufficient to state a civil rights claim unless there was

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another recognized constitutional right involved.”); Simmons v. Atkins, No. 116CV01447

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BAMPC, 2017 WL 2868473, at *5 (E.D. Cal. July 5, 2017) (refusal to investigate religious

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ceremonies); Page v. Stanley, No. CV 11–2255 CAS (SS), 2013 WL 2456798, at *8–9 (C.D. Cal.

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June 5, 2013) (dismissing Section 1983 claim alleging that officers failed to conduct thorough

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investigation of plaintiff’s complaints because plaintiff “had no constitutional right to any

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investigation of his citizen’s complaint, much less a ‘thorough’ investigation or a particular

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outcome”). Accordingly, Plaintiff cannot state a claim against any Defendant for failure to

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investigate Plaintiff’s claims against Defendant Perez.

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D.

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Mere verbal harassment or abuse, including the use of racial epithets, does not violate the

Verbal Threats

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Constitution and, thus, does not give rise to a claim for relief under 42 U.S.C. § 1983.

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Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Threats do not rise to the level of a

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constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987).

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Plaintiff’s allegations against Defendant Perez for verbal threats are insufficient to give
rise to a constitutional claim.

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E.

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To state a claim for conspiracy under section 1983, Plaintiff must show the existence of an

Conspiracy

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agreement or a meeting of the minds to violate his constitutional rights, and an actual deprivation

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of those constitutional rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir.2010); Franklin v. Fox,

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312 F.3d 423, 441 (9th Cir. 2001). To have standing to bring this type of claim, Plaintiff must

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also allege he suffered an actual injury. Vandelft v. Moses, 31 F.3d 794, 798 (9th Cir. 1994).

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Plaintiff makes general, omnibus allegations that the Defendants, in doing the myriad of

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acts alleged, were doing so in the furtherance of some grand conspiracy. Plaintiff must plead the

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basic elements of a civil conspiracy: an agreement and concerted action amongst the defendants

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in the furtherance of that agreement, and that each defendant conspired to violate Plaintiff’s

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constitutional rights. See also Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 2008)

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(noting that a bare allegation of a conspiracy is almost impossible to defend against where

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numerous individuals are concerned). However, as noted above, a claim of conspiracy regarding

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sex rings is not properly joined with claims against Defendant Perez for sexual abuse.

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F.

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Allegations of retaliation against a plaintiff’s First Amendment rights to speech or to

Retaliation

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petition the government may support a Section 1983 claim. See Pratt v. Rowland, 65 F.3d 802,

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807 (9th Cir. 1995). “The First Amendment rights of detainees, like those of convicted prisoners,

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‘may be limited or retracted if required to maintain institutional security and preserve internal

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order and discipline.’ ” Esparza v. Baca, No. CV 07-4118-PSG (OP), 2010 WL 4536786, at *7

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(C.D. Cal. Aug. 31, 2010), report and recommendation adopted, No. CV 07-4118-PSG (OP),

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2010 WL 4530364 (C.D. Cal. Oct. 29, 2010) (quoting Pierce v. Cty. of Orange, 526 F.3d 1190,

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1209 (9th Cir. 2008)).

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A viable claim of First Amendment retaliation by a civil detainee entails five elements:

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(1) the plaintiff engaged in protected conduct; (2) an assertion that a state actor took some adverse

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action against the plaintiff; (3) the adverse action was “because of” the plaintiff’s protected
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conduct (i.e., “retaliatory motive”); (4) the adverse action “would chill or silence a person of

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ordinary firmness from future First Amendment activities;” and (5) the action did not reasonably

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advance a legitimate correctional goal. See Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir.

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2005).

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Plaintiff fails to state a cognizable retaliation claim. There are no facts from which the

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Court could find that the purported conduct of Defendant Perez was in retaliation for Plaintiff’s

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protected conduct. Plaintiff also fails to state a cognizable claim for retaliation against the other

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defendants.

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V.

Conclusion and Recommendation

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Plaintiff’s first amended complaint states a cognizable claim for excessive force in

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violation of the Due Process Clause of the Fourteenth Amendment against Defendant Faith Perez

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for the purported two incidents which occurred in November 2014 and the one incident on

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February 8, 2015, and a cognizable claim for failure to protect in violation of the Due Process

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Clause of the Fourteenth Amendment against Defendant Lain, but fails to state any other

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cognizable claims.

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1. This action proceed on Plaintiff’s first amended complaint, filed October 30, 2017, (ECF

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No. 30), for excessive force in violation of the Fourteenth Amendment against Defendant

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Perez and for failure to protect in violation of the Fourteenth Amendment against

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Defendant Lain; and

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2. All other claims and Defendants be dismissed based on Plaintiff’s failure to state claims
upon which relief may be granted.

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

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Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after

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being served with these Findings and Recommendations, Plaintiff may file written objections

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

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and Recommendations.” Plaintiff is advised that the failure to file objections within the specified
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time may result in the waiver of the “right to challenge the magistrate’s factual findings” on

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appeal. 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:

/s/ Barbara

February 27, 2018

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

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