Malcolm Stroud v. Pruitt et al

Filing 18

ORDER DIRECTING Clerk of Court to Randomly Assign District Judge; FINDINGS and RECOMMENDATIONS Regarding Dismissal of Certain Claims and Defendants, signed by Magistrate Judge Barbara A. McAuliffe on 5/8/19. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

MALCOLM TANDY LAMON STROUD,

12

Plaintiff,

13
14

Case No. 1:17-cv-01659-BAM (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE

v.
TED PRUITT, et al.,

15

FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS

Defendants.
FOURTEEN-DAY DEADLINE

16
17
18

Plaintiff Malcolm Tandy Lamon Stroud (“Plaintiff”) is a state prisoner proceeding pro se

19

and in forma pauperis in this civil rights action under 42 U.S.C. § 1983. On May 22, 2018, the

20

Court screened Plaintiff’s complaint and granted leave to amend. (ECF No. 14.) Plaintiff’s first

21

amended complaint, filed on July 27, 2018, is currently before the Court for screening. (ECF No.

22

17.)

23

I.

24

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

25

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

26

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

27

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

Screening Requirement and Standard

28
1

1

relief from a defendant who is immune from such relief.

2

28 U.S.C. §§ 1915A(b);

1915(e)(2)(B)(ii).

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

I.

17

Plaintiff is currently housed at the R. J. Donovan Correctional Facility in San Diego,

18

California. The events in the complaint are alleged to have occurred while Plaintiff was housed at

19

the California Substance Abuse Treatment Facility (“CSATF”) in Corcoran, California. Plaintiff

20

names the following defendants in their individual capacities: (1) Ted Pruitt, Prison Industry

21

Authority Work Supervisor; (2) Jack Smith, Prison Industry Authority Work Supervisor; and (3)

22

Nick Maloy, Prison Industry Authority Superintendent II.

23

sometimes known as “CALPIA” or “PIA,” is an entity within the California Department of

24

Corrections and Rehabilitation that employs prisoners in agricultural and industrial positions. Cal.

25

Gov’t Code §§ 12838(a), 12838.6; Cal. Penal Code §§ 2701, 2800, 2805.

The Prison Industry Authority,

26

Plaintiff alleges that she was sexually harassed by her boss, Defendant Pruitt, on more

27

than one occasion, while on the job at PIA. Plaintiff complains that she was subjected to

28

countless sexual innuendos, vulgar and explicit sexual comments, and continual, unwanted sexual
2

1

advances, and was sexually assaulted by Defendant Pruitt on more than one occasion. She was

2

subjected to unwanted touching, groping and fondling, including Defendant Pruitt

3

grinding/pushing/pumping his erection on her back on more than one occasion. Plaintiff asserts

4

that she suffered every day until she quit working.

5

Due to these events, Plaintiff asserts that she is under a doctor’s care and suffers from

6

hypertension, high blood pressure, stress, depression, anxiety and post traumatic stress disorder.

7

Plaintiff claims that she is now afraid to work for any staff without an officer being present and

8

she also is afraid of continuing her transition into a woman, fearing she will be at greater risk of

9

sexual assault. She has refused hormone treatment and stopped the process of redirect surgery

10

despite her doctor’s recommendations and requirement for treatment.

11

During the time of the alleged incidents, Plaintiff was considered to be an openly

12

gay/homosexual flamboyant inmate. She currently identifies as a transgender person and has

13

been diagnosed with gender dysphoria. Plaintiff would like the sex relocation surgery to become

14

a woman, but she continues to suffer from the incidents.

15

Plaintiff explains that she started working in PIA in February or early March 2014.

16

Defendant Pruitt was Plaintiff’s boss. On more than one occasion, Defendant Pruitt would wink

17

at Plaintiff and stroke her hand when he would pass out IDs at the end of the work day. Plaintiff

18

thought it was flattering until some of the other openly gay or transgender inmates warned her

19

that Defendant Pruitt was a little touchy feely and had priors for unwanted touching, inappropriate

20

behavior, misconduct and sexual harassment.

21

Plaintiff continued to do her job by being polite and doing as instructed. She was given

22

raises according to her work performance and was promoted to clerk in February or March 2015

23

by the inmate assignment lieutenant. Defendant Pruitt was no longer working in the shop. He

24

was out on leave and it was said that he was unlikely to come back. Plaintiff accepted the clerk

25

position only because she thought Defendant Pruitt would not come back.

26

Defendant Smith was a new hire and was reported to be taking over Defendant Pruitt’s

27

spot. Upon his hiring, Defendant Smith made it clear that he knew all the games and tricks

28

because his dad was an Ad-Seg Lieutenant at Corcoran State Prison for 20 years. Defendant
3

1

Smith boasted that his dad knew everyone and was well connected throughout the California

2

Department of Corrections and Rehabilitation (“CDCR”).

3

intimidate inmates and to read confidential materials.

Defendant Smith uses this to

4

When Plaintiff was hired and showed Defendant Smith the new work assignment ducat,

5

Defendant Smith responded, “I guess the assignment office got it right, by killing two birds with

6

one stone, since you are black and gay.” (ECF No. 17 at 6.) Plaintiff said, “If that’s a joke, I’m

7

not laughing, I don’t appreciate being degraded or belittled due to my race or sexuality, I earned

8

this position because I’m most qualified and it’s all about equal opportunity of employment these

9

days.” (Id.)

10

From that point forward, Defendant Smith allegedly sought to fire Plaintiff or make her

11

quit by making her job a living nightmare. Plaintiff contends that Defendant Smith would

12

scrutinize Plaintiff’s work performance beyond professional norms.

13

degrading comments to Plaintiff, using homophobic slurs such as “Fagot, Queer, Homo.” (Id.)

14

Defendant Smith told Plaintiff to quit on more than one occasions because he despised her and

15

hated her kind. Defendant Smith reportedly refused to hire any homosexual or transgender

16

inmates. Plaintiff was forced to quite when Defendant Smith began to falsify reasons to fire her,

17

and became more physically aggressive to Plaintiff, including making up excuses to search her

18

every day for alleged contraband, despite Plaintiff being stripped search every day to return to her

19

housing unit. Defendant Smith was admonished by custody officers for searching plaintiff or any

20

inmate, explaining that Defendant Smith should not be performing body searches of inmates.

21

Plaintiff was never found to have any contraband and never received a disciplinary write up for

22

contraband.

Defendant Smith made

23

Plaintiff alleges that she was falsely accused of having contraband as a means to

24

discriminate against her and to humiliate her in the shop by causing her to be searched. Plaintiff

25

alleges that Defendant Smith never searched any other inmate. Plaintiff further alleges that

26

Defendant Smith sexually harassed her with vulgar comments, homophobic slurs and

27

inappropriate sexual gestures.

28

Defendant Pruitt returned in May 2015 to his regular position as PIA work supervisor. He
4

1

was senior to Defendant Smith and became Plaintiff’s direct boss. Upon learning that Plaintiff

2

was now a clerk, Defendant Pruitt gave Plaintiff a squeeze on the shoulder with a sheepish grin

3

and said, “It’ll be fun working with ya.”

4

uncomfortable and fearful because of how Defendant Pruitt made the statement and the look in

5

his eyes.

(ECF No. 17 at 9.)

Plaintiff felt extremely

6

Plaintiff alleges each of day of her employment with Defendant Pruitt, he found a way to

7

inappropriately touch or sexually assault her. Defendant Pruitt would lean over Plaintiff and

8

point to something on the computer screen as an excuse to push his erection against her back.

9

Plaintiff asserts that every single day was filled with unwanted sexual innuendo or comments.

10

Defendant Pruitt also would call Plaintiff to give her some paperwork. He would hold the

11

paperwork in his crotch and force Plaintiff to grab it.

12

Plaintiff also alleges that in June or July 2015, there was a conference call between

13

Defendants Maloy, Pruitt, Smith, Plaintiff, J. Barkus and a computer programmer in Sacramento,

14

California. After the call, Defendant Pruitt requested that Plaintiff teach him the new computer

15

functions. Plaintiff trained everyone on the new system, and it took her only 6 to 10 days to

16

properly train an individual. However, Plaintiff alleges that it took approximately 8 weeks to

17

properly train Defendant Pruitt. Plaintiff claims that Defendant Pruitt wanted her close, so he

18

could touch her and coerce her for sexual favors.

19

Plaintiff contends that Defendant Pruitt would often tell her that there was nothing wrong

20

with being gay and not to be afraid as he would caress her hand and look lustfully into her eyes.

21

Defendant Pruitt also would request oral sex from Plaintiff, saying she could get under his desk

22

and no one would see her. Defendant Pruitt reportedly made some kind of sexual advancement,

23

sexual innuendo or sexual comment to Plaintiff every day. He also would find a way to touch her

24

inappropriately or press up against her with erections despite Plaintiff’s objections.

25

On September 3, 2015, Defendant Smith allowed Plaintiff and several other inmates to

26

leave work in order to see their counselors. Plaintiff went straight to her counselor’s office and

27

waited in line for her turn. Plaintiff began talking to some of the other transgender inmates while

28

she waited to see her counselor. Plaintiff was on the yard for approximately 15 minutes when she
5

1

was ordered to return to work. The other inmates were not ordered back to work. Plaintiff

2

complains that she was targeted and discriminated against because of her sexual orientation and

3

there was no reason to call her off of the yard.

4

When Plaintiff returned to work, Defendant Smith was waiting. Plaintiff claims he was

5

calling her back as if she had done something wrong and to justify taking her pay number.

6

Plaintiff received no disciplinary actions for going to see her counselor and no inmates lost their

7

pay numbers for it or had their pay reduced without warning. Plaintiff claims that she lost her pay

8

without any prior wrongdoing, infractions or disciplinary write-ups. She also was not given a

9

warning. Defendant Smith reported told Plaintiff that she “shouldn’t be hanging out with Fags.”

10

(ECF No. 17 at 12.) Because Defendant Smith went on vacation, Plaintiff confronted Defendant

11

Pruitt about the pay. Plaintiff contends that Defendant Pruitt tried to use this to coerce Plaintiff

12

into sexual favors by telling Plaintiff that she needed to be a team player.

13

Plaintiff claims that she went to Defendant Maloy on more than one occasion regarding

14

the discrimination and homophobic slurs by Defendant Smith, but Defendant Maloy failed to do

15

anything about it and failed to remedy the situation. Plaintiff claims that Defendant Maloy was

16

aware of the homophobic culture in the shop and the sexual harassment, but did nothing to stop it,

17

prevent it or report it. Plaintiff claims that Defendant Maloy neglected to perform his duties as

18

Superintendent.

19

Defendant Pruitt subsequently gave Plaintiff a raise in an alleged attempt to entice

20

Plaintiff to perform sexual favors. Plaintiff continued to decline his advances, but Defendant

21

Pruitt became more aggressive, telling Plaintiff that she owed him.

22

Plaintiff attempted to get a job change on more than one occasion but was refused.

23

Defendant Pruitt would not allow the change or allow Plaintiff to move out of the shop.

24

Defendant Pruitt allegedly would claim he was friends with lots of correctional officers, including

25

the Warden, and could make anything happen.

26

On November 25, 2015, Defendant Pruitt began to perform body searches on Plaintiff,

27

claiming to be checking for contraband. Plaintiff asked why Defendant Pruitt needed to search

28

him when he was required to be strip searched by correctional officers when leaving PIA.
6

1

Defendant Pruitt told Plaintiff to do as she was told, or she would receive an RVR 115 for failure

2

to follow a direct order. Plaintiff contends that Defendant Pruitt used these searches as an

3

opportunity to grope Plaintiff on the ass.

4

December 2, December 3 and December 4, 2015, but no contraband was found. When Defendant

5

Pruitt requested that Plaintiff remove his shirt on December 8, 2015, Plaintiff refused and

6

reported him to PIA custody officers. Defendant Pruitt followed plaintiff to the strip shack,

7

where he watched Plaintiff get strip searched. Plaintiff asked if Defendant Pruitt had a right to

8

search her, and they said no. Plaintiff received an RVR 115 for failure to follow a direct order for

9

refusing to remove his shirt. Plaintiff was found guilty of the RVR.

Plaintiff was searched again on November 30,

10

On December 9, 2015, Plaintiff refused to go to work. Officer Naismith, the control booth

11

officer, asked Plaintiff why she was not going to work. Plaintiff told him that Defendant Pruitt

12

was a pervert and she would never work in PIA again. Approximately 15 minutes later, Officer

13

Naismith opened Plaintiff’s door and told her that Defendant Pruitt wanted to talk to her. Officer

14

Naismith allegedly was a friend of Defendant Pruitt.

15

Plaintiff reported to work exchange and requested that officers escort him to speak with

16

Defendant Pruitt because Plaintiff was afraid.

The officers escorted Plaintiff to the PIA

17

supervisor’s office where Plaintiff confronted Defendant Pruitt in front of both officers.

18

Defendant Pruitt denied everything, including calling for Plaintiff.

19

Plaintiff a RVR 115 for refusing to work. Plaintiff again was found guilty of the RVR by one of

20

Defendant Pruitt’s friends.

Defendant Pruitt wrote

21

During the months of alleged harassment, Plaintiff confided in her family, psych and co-

22

workers. Inmate Markham encouraged Plaintiff to report Defendant Pruitt and went to Officer

23

Radcliff on Plaintiff’s behalf. Officer Radcliff told Plaintiff that she needed to come forward if

24

she wanted something done and to prevent it from happening to others.

25

On December 9, 2015, Plaintiff spoke to her psych about everything. The psych told

26

Plaintiff’s counselor, Ms. Hernandez, who called Plaintiff to her office and said, “Really, a big

27

boy like you, being sexually harassed by free staff! I find that hard to believe.” (ECF No. 17 at

28

17.) Officer Naismith was listening to the conversation. Plaintiff said it was because of her that
7

1

people like Plaintiff were afraid to come forward and it allowed predators to prey on the innocent.

2

Ms. Hernandez replied that nobody in prison is innocent.

3

After Plaintiff returned to her cell, Officer Naismith told Plaintiff to report to Lt. Iverson

4

in the program office. As Plaintiff left, Officer Naismith claimed Plaintiff was a liar. Plaintiff

5

reported to the program office where he was interrogated by Lt. Iverson. Lt. Iverson did a Prison

6

Rape Elimination Act assessment and told Plaintiff that he no longer had to go to work.

7

However, Plaintiff was still found guilty of failure to work.

8

As relief, Plaintiff seeks compensatory and punitive damages.

9

II.

10

Discussion
A. Eighth Amendment - Sexual Harassment

11

Plaintiff’s allegations regarding sexual harassment implicate the Eighth Amendment to the

12

United States Constitution. A sexual assault on an inmate by a prison official implicates the rights

13

protected by the Eighth Amendment. Schwenk v. Hartford, 204 F.3d 1187, 1197 (2000); see also

14

Wood v. Beauclair, 692 F.3d 1041, 1046 (9th Cir. 2012); Boddie v. Schnieder, 105 F.3d 857, 861

15

(2d Cir. 1997) (“Sexual abuse may violate contemporary standards of decency and can cause

16

severe physical and psychological harm”). For this reason, severe or repetitive sexual abuse of an

17

inmate by a prison officer can be “objectively, sufficiently serious” to constitute an Eighth

18

Amendment violation. Boddie, 105 F.3d at 861.

19

While “the Ninth Circuit has recognized that sexual harassment may constitute a

20

cognizable claim for an Eighth Amendment violation, the Court has specifically differentiated

21

between sexual harassment that involves verbal abuse and that which involves allegations of

22

physical assault, finding the later to be in violation of the constitution.” Minifield v. Butikofer,

23

298 F.Supp.2d 900, 904 (N.D. Cal. 2004) (citing Schwenk, 204 F.3d at 1198)). Indeed, the

24

Eighth Amendment’s protections do not generally extend to mere verbal sexual harassment. See

25

Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (finding that incident involving guard that

26

exposed himself to inmate and never physically touched the inmate was not sufficiently serious to

27

constitute an Eighth Amendment violation); Blueford v. Prunty, 108 F.3d 251, 256 (9th Cir. 1997)

28

(affirming summary judgment in favor of prison officials where “the only arguably sexually
8

1

harassing conduct… was verbal”); Blacher v. Johnson, 517 Fed.Appx. 564 (9th Cir. 2013)

2

(finding that Eighth Amendment’s protections did not extend to mere verbal sexual harassment)

3

(citation omitted).

4

occasional offensive sexual remarks—do not rise to the level of a constitutional violation. See,

5

e.g., Watison v. Carter, 668 F.3d 1108, 1112–13 (9th Cir. 2012) (where an inmate asserted an

6

officer entered his cell and approached the inmate while he was on the toilet, then rubbed his

7

thigh against the inmate’s thigh, “began smiling in a sexual [manner], and left the cell laughing,”

8

the allegations were not sufficient to support a violation of the Eighth Amendment).

Further, isolated incidents of sexual touching—even when coupled with

9

At the pleading stage, the Court finds that Plaintiff has stated a cognizable claim against

10

Defendant Pruitt based on allegations of repeated incidents of unwanted sexual touching,

11

including unauthorized “searches” for asserted contraband. However, Plaintiff has failed to state

12

a cognizable Eighth Amendment against Defendants Pruitt and Smith based on allegations of

13

verbal sexual harassment. As indicated, allegations of verbal harassment are not sufficient to

14

state a claim under section 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987).

15

The Court will therefore recommend that this action proceed against Defendant Pruitt based on

16

allegations of physical sexual abuse and the claims for verbal sexual harassment against

17

Defendants Pruitt and Smith be dismissed.

18
19
20

B. Fourteenth Amendment – Discrimination
Plaintiff appears to assert that Defendants Pruitt and Smith discriminated against her by
reducing her pay on more than one occasion because she is a transgender/gay inmate

21

The Equal Protection Clause requires the state to treat all similarly-situated people

22

equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To prevail on an

23

Equal Protection claim brought under § 1983, a plaintiff must allege facts plausibly showing that

24

“the defendants acted with an intent or purpose to discriminate against the plaintiff based upon

25

membership in a protected class.” See Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th

26

Cir. 2005) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001)). Under this

27

theory of equal protection, the plaintiff must show that the defendant's actions were a result of the

28

plaintiff's membership in a suspect class. Id. The Supreme Court has not determined whether
9

1

transgender individuals constitute a protected class. See Hampton v. Baldwin, No. 3:18-CV-550-

2

NJR-RJD, 2018 WL 5830730, at *10 (S.D. Ill. Nov. 7, 2018). However, district courts within the

3

Ninth Circuit have recognized that discrimination based on transgender status is actionable under

4

the Equal Protection Clause. McQueen v. Brown, No. 2:15-cv-2544 JAM AC P, 2018 WL

5

1875631, at *3 (E.D. Cal. Apr. 19, 2018), report and recommendation adopted, No. 2:15-cv-2544

6

JAM AC P, 2018 WL 2441713 (E.D. Cal. May 31, 2018) (collecting cases); Karnoski v. Trump,

7

No. C17-1297-MJP, 2018 WL 1784464, at *1 (W.D. Wash. Apr. 13, 2018) (“The Court also rules

8

that, because transgender people have long been subjected to systemic oppression and forced to

9

live in silence, they are a protected class.”).

10

Even where state action does not implicate a fundamental right or a suspect classification,

11

the plaintiff can establish an equal protection “class of one” claim by demonstrating that the state

12

actor (1) intentionally (2) treated him differently than other similarly situated persons, (3) without

13

a rational basis. Gerhart v. Lake County Montana, 637 F.3d 1013, 1022 (9th Cir. 2011) (citing

14

Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)).

15

At the pleading stage, the Court finds that Plaintiff has pled sufficient facts indicating that

16

the actions of Defendants Pruitt and Smith in docking her pay were motivated by discriminatory

17

intent based on Plaintiff’s status as a transgender individual. The Court will therefore recommend

18

that Plaintiff’s action proceed against Defendants Pruitt and Smith for discrimination in violation

19

of the Equal Protection Clause of the Fourteenth Amendment.

20

C.

Supervisory Liability

21

Insofar as Plaintiff is attempting to sue Defendant Maloy based on his supervisory role,

22

she may not do so. Liability may not be imposed on supervisory personnel for the actions or

23

omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676–

24

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

25

Stockton, 588 F.3d 1218, 1235 (9th Cir.2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir.

26

2002).

27

Supervisors may be held liable only if they “participated in or directed the violations, or

28

knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th
10

1

Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 567

2

F.3d 554, 570 (9th Cir. 2009). Supervisory liability may also exist without any personal

3

participation if the official implemented “a policy so deficient that the policy itself is a

4

repudiation of the constitutional rights and is the moving force of the constitutional violation.”

5

Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations

6

marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970).

7

Here, Plaintiff has failed to establish that Defendant Maloy participated in or directed any

8

constitutional violation or that he implemented a policy so deficient that it was the moving force

9

of any constitutional violation. At best, Plaintiff complained to Defendant Maloy regarding

10

alleged verbal harassment, which does not rise to the level of a constitutional violation. The

11

Court will therefore recommend that Plaintiff’s claim against Defendant Maloy be dismissed.

12

III.

13

Based on the foregoing, the Court finds that Plaintiff’s amended complaint states a

14

cognizable claim for sexual abuse in violation of the Eighth Amendment against Defendant Pruitt

15

and a cognizable claim for discrimination against Defendants Pruitt and Smith in violation of the

16

Equal Protection Clause of the Fourteenth Amendment. However, Plaintiff’s complaint fails to

17

state any other cognizable claims for relief. Despite being provided with the relevant pleading

18

and legal standards, Plaintiff has been unable to cure the deficiencies in her complaint and thus

19

further leave will not be granted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

20
21

Conclusion and Recommendation

Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a district
judge to this action.

22

Further, it is HEREBY RECOMMENDED that:

23

1.

24

against Defendant Pruitt for sexual abuse in violation of the Eighth Amendment and

25

against Defendants Pruitt and Smith for discrimination in violation of the Equal Protection

26

Clause of the Fourteenth Amendment; and

27

2

28

claims upon which relief may be granted.

This action proceed on Plaintiff’s first amended complaint, filed on July 27, 2018,

All other claims and defendants be dismissed based on Plaintiff’s failure to state

11

1

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

2

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

3

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

4

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

5

Recommendations.” Plaintiff is advised that the failure to file objections within the specified time

6

may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal.

7

Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d

8

1391, 1394 (9th Cir. 1991)).

9
10
11
12

IT IS SO ORDERED.
Dated:

/s/ Barbara

May 8, 2019

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12