(PC) Porter v. Amezcua et al
Filing
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FINDINGS and RECOMMENDATIONS Regarding Dismissal of Certain Claims and Defendants re 17 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Barbara A. McAuliffe on 5/7/2024. Referred to Judge Thurston. Objections to F&R due within fourteen (14) days. (Lawrence, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KEVIN LAMAR PORTER,
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Plaintiff,
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v.
AMEZCUA, et al.,
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Defendants.
Case No. 1:23-cv-01491-JLT-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS
(ECF No. 17)
FOURTEEN (14) DAY DEADLINE
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I.
Background
Plaintiff Kevin Lamar Porter (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On April 22, 2024, the
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Court screened the complaint and found that Plaintiff stated cognizable claims against:
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(1) Defendant Amezcua for retaliation in violation of the First Amendment; (2) Defendant
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Amezcua for excessive force in violation of the Eighth Amendment for slamming Plaintiff on the
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ground; and (3) Defendants Amezcua and Chao for excessive force in violation of the Eighth
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Amendment for forcefully moving Plaintiff despite his complaints of severe pain. (ECF No. 16.)
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The Court ordered Plaintiff to either file a first amended complaint or notify the Court of his
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willingness to proceed only on the cognizable claims identified by the Court. (Id.) Plaintiff’s
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first amended complaint, filed May 6, 2024, is currently before the Court for screening. (ECF
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No. 17.)
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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. Secret
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Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully
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is not sufficient, and mere consistency with liability falls short of satisfying the plausibility
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standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
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A.
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Plaintiff is currently housed at California State Prison, Sacramento. The events in the
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complaint are alleged to have occurred while Plaintiff was housed at California State Prison –
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Corcoran (“CSP – Corcoran”). Plaintiff names the following defendants: (1) Correctional Officer
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C. Amezcua; (2) Correctional Officer T. Chao; (3) John Doe 1–5; and (4) Jane Doe 1–2. All
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defendants are employees of CSP – Corcoran and are sued in their individual capacities.
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Allegations in First Amended Complaint
Plaintiff was an inmate at CSP – Corcoran on April 28, 2023. On April 28, 2023, at
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approximately 1636 hours, Defendant Amezcua slammed Plaintiff on the ground unnecessarily,
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for no legitimate reason. Plaintiff attempted to ask Defendant Amezcua to slow down his pace,
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because Plaintiff was having chest pains due to an injury he sustained earlier that day. After
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Amezcua slammed Plaintiff on the ground, Plaintiff requested to be examined by medical staff for
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a medical emergency. Amezcua’s Body Worn Camera (“BWC”) for April 28, 2023, at the time
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between 1630 hours to 1650 hours, shows Plaintiff asking for adequate and reasonable medical
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care, and being denied it.
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After Amezcua slammed Plaintiff on the ground unnecessarily, Defendant Chao was in a
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position to prevent further unnecessary use of force, as were Defendants John Doe 1–5.
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Defendants Chao and John Doe 1–5 assisted Amezcua by helping Amezcua forcefully move
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Plaintiff, in total disregard to Plaintiff’s complaints of severe back pain.
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Plaintiff has a medical history of moderate facet spondylosis at L5-S1 with suggestion of
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neural foraminal narrowing at this level, and associated discogenic endplate changes at L5-S1.
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The slam on the ground by Amezcua aggravated Plaintiff’s chronic back condition and
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caused a lot of pain that was even more painful when Chao and John Doe 1–5 forcefully moved
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Plaintiff without his consent. Amezcua also forcefully moved Plaintiff without his consent after
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he slammed Plaintiff on the ground unnecessarily.
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Defendants Jane Doe 1–2 denied Plaintiff adequate medical care for his aggravated back
injury he sustained after being slammed on the ground by Amezcua.
Amezcua made a false report against Plaintiff, in retaliation for Plaintiff making an
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unnecessary/excessive use of force allegation against Amezcua and filing a grievance against
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Amezcua regarding that allegation. Plaintiff was found Not Guilty of Amezcua’s false report by
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Lieutenant D. Hernandez on June 12, 2023, after reviewing Defendants Amezcua and Chao’s
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BWCs and discovering that Plaintiff did nothing wrong or illegal, and nothing that would justify
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any use of force. Defendants Amezcua, Chao, and John Doe 1–5 were wearing BWCs during the
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incident in question on April 28, 2023.
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Amezcua was aware that Plaintiff had made an allegation of unnecessary and excessive
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use of force against him, and that Plaintiff filed a grievance against him for another incident prior
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to April 28, 2023. Prior to the incident on April 28, 2023, Amezcua was involved in a cell
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extraction that resulted in him using unnecessary and excessive force against Plaintiff, who told
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Amezcua during and after the incident that he would be filing a grievance because what Amezcua
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did was unnecessary. Amezcua was wearing a BWC during the incident that occurred prior to
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April 28, 2023.
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Plaintiff exhausted his requirements under the Prison Litigation Reform Act. Plaintiff
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filed Government Claims on these issues within six months of accrual of the causes of actions,
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and a rejection letter was sent for Claim #190000213.
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First Cause of Action (Excessive Force under 42 U.S.C. § 1983)
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Defendant Amezcua committed excessive and unnecessary use of force against Plaintiff
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when he slammed Plaintiff on the ground for no legitimate reason. Defendants Chao and John
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Doe 1–5 committed excessive and unnecessary use of force against Plaintiff when they grabbed
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Plaintiff without his consent after the slam and forcefully moved Plaintiff while disregarding the
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complaints of pain coming from Plaintiff due to his lower back chronic condition being
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aggravated or worse. As a direct and proximate result of Defendants Amezcua, Chao, and John
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Doe 1–5’s excessive and unnecessary use of force, Plaintiff’s lower back was injured from the
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slam, and it caused severe pain and made it hard for Plaintiff to move around at first, which
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increased the pain when Defendants Chao and John Doe 1–5 forcefully moved Plaintiff.
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Second Cause of Action (Battery/Wrongful Act and Omission under Cal. Govt.
§ 844.6(d))
Defendant Amezcua committed battery against Plaintiff when he slammed Plaintiff on the
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ground unnecessarily for no legitimate reason. Defendants Chao and John Doe 1–5 committed
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battery against Plaintiff when they forcefully moved him while disregarding his complaints of
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lower back pain. As a direct and proximate result of Defendants Amezcua, Chao, and John Doe
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1–5’s battery, Plaintiff’s lower back was injured from the slam, and Plaintiff was subjected to a
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lot of pain from being moved forcefully.
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Third Cause of Action (Retaliation under 42 U.S.C. § 1983)
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Defendant Amezcua retaliated against Plaintiff for filing a grievance against him and
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making an unnecessary and excessive use of force allegation against him when Amezcua made a
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false report against Plaintiff, charging Plaintiff for a rule violation after finding out that Plaintiff
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filed a grievance and made an allegation against Amezcua for unnecessary and excessive use of
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force. Charging Plaintiff for a Rule Violation Report that was intentionally false and only filed
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because Plaintiff filed a grievance and made an unnecessary and excessive use of force allegation
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against Amezcua advances no correctional goal. Being charged a false report for exercising your
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First Amendment rights would chill or silence a person of ordinary firmness from future First
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Amendment activities, as would being slammed on the ground for no legitimate reason. As a
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direct and proximate result of Amezcua’s retaliation, Plaintiff was charged a false RVR, and
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slammed on the ground, injuring his lower back, which subjected Plaintiff to a lot of pain and
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made it hard for Plaintiff to move around for some time afterwards.
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Fourth Cause of Action (Violation of Civil Rights: Interference by threat, intimidation, or
coercion – Cal. Civ. Code § 52.1(c) and Cal. Govt. Code § 844.6(d))
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Plaintiff filing a grievance against Amezcua, and making an unnecessary and excessive
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use of force allegation against Amezcua, Chao, and John Doe 1–5 is an exercise of Plaintiff’s
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freedom of speech and petition under the First Amendment of the United States Constitution.
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Plaintiff requesting adequate medical care from Amezcua, Chao, John Doe 1–5, and Jane Doe 1–
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2 for a serious medical condition is an exercise of Plaintiff’s right to be free from the unnecessary
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and wanton infliction of pain under the Eighth Amendment of the United States Constitution.
Amezcua attempted to interfere with Plaintiff’s rights when he slammed Plaintiff to the
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ground and charged him for a RVR that was false. Chao and John Doe 1–5 interfered with
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Plaintiff’s rights when they forcefully moved him and ignored his complaints of severe lower
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back pain that was aggravated by Amezcua’s slam. Jane Doe 1–2 interfered with Plaintiff’s
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rights when they were aware of his serious medical condition, and failed to treat him for it.
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As a direct and proximate result of Amezcua, Chao, John Doe 1–5, and Jane Doe 1–2’s
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interference and attempted interference, Plaintiff injured his back and was subjected to
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unnecessary and wanton infliction of pain.
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Relief
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Plaintiff seeks compensatory and punitive damages against all defendants.
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B.
Discussion
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First Amendment – Retaliation
Allegations of retaliation against a prisoner’s First Amendment rights to speech or to
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petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532
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(9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v.
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Rowland, 65 F.3d 802, 807 (9th Cir. 1995). “Within the prison context, a viable claim of First
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Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some
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adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that
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such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did
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not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–
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68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012); Silva, 658
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at 1104; Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).
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Adverse action taken against a prisoner “need not be an independent constitutional
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violation. The mere threat of harm can be an adverse action.” Watison, 668 F.3d at 1114
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(internal citations omitted). A causal connection between the adverse action and the protected
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conduct can be alleged by an allegation of a chronology of events from which retaliation can be
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inferred. Id. The filing of grievances and the pursuit of civil rights litigation against prison
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officials are both protected activities. Rhodes, 408 F.3d at 567–68. The plaintiff must allege
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either a chilling effect on future First Amendment activities, or that he suffered some other harm
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that is “more than minimal.” Watison, 668 F.3d at 1114. A plaintiff successfully pleads that the
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action did not reasonably advance a legitimate correctional goal by alleging, in addition to a
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retaliatory motive, that the defendant’s actions were “arbitrary and capricious” or that they were
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“unnecessary to the maintenance of order in the institution.” Id.
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Plaintiff alleges that he previously filed a grievance and made an unnecessary use of force
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allegation against Defendant Amezcua for an incident that occurred prior to April 28, 2023. After
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finding out about Plaintiff’s grievance, Defendant Amezcua retaliated against Plaintiff by filing a
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false RVR and slamming Plaintiff to the ground on April 28, 2023, causing Plaintiff to injure his
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lower back and suffer a lot of pain. At the pleading stage, Plaintiff states a cognizable claim for
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retaliation against Defendant Amezcua.
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2.
Eighth Amendment
The Eighth Amendment protects prisoners from inhumane methods of punishment and
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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 unnecessary and wanton infliction of pain violates the Cruel and Unusual
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Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992)
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(citations omitted). Although prison conditions may be restrictive and harsh, prison officials must
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provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety.
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Farmer v. Brennan, 511 U.S. 825, 832–33 (1994) (quotations omitted).
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a.
Excessive Force
For claims of excessive physical force, the issue is “whether force was applied in a good-
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faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”
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Hudson, 503 U.S. at 7. Relevant factors for this consideration include “the extent of injury . . . [,]
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the need for application of force, the relationship between that need and the amount of force used,
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the threat ‘reasonably perceived by the responsible officials,’ and ‘any efforts made to temper the
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severity of a forceful response.’” Id. (quoting Whitley v. Albers, 475 U.S. 1078, 1085 (1986)).
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Although de minimis uses of force do not violate the Constitution, the malicious and sadistic use
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of force to cause harm always violates the Eighth Amendment, regardless of whether or not
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significant injury is evident. Hudson, 503 U.S. at 9–10; Oliver v. Keller, 289 F.3d 623, 628 (9th
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Cir. 2002).
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At the pleading stage, Plaintiff states a cognizable claim for excessive force against
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Defendant Amezcua for slamming Plaintiff on the ground for no legitimate reason, and against
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Defendants Amezcua, Chao, and John Does 1–5 for then forcefully moving Plaintiff in disregard
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to Plaintiff’s complaints of severe back pain.
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b.
Deliberate Indifference to Medical Care
A prisoner’s claim of inadequate medical care constitutes cruel and unusual punishment in
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violation of the Eighth Amendment where the mistreatment rises to the level of “deliberate
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indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)
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(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate
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indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure
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to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and
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wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately
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indifferent.” Jett, 439 F.3d at 1096.
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A defendant does not act in a deliberately indifferent manner unless the defendant “knows
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of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825,
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837 (1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609
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F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is
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shown where there was “a purposeful act or failure to respond to a prisoner’s pain or possible
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medical need” and the indifference caused harm. Jett, 439 F.3d at 1096. In applying this
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standard, the Ninth Circuit has held that before it can be said that a prisoner’s civil rights have
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been abridged, “the indifference to his medical needs must be substantial. Mere ‘indifference,’
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‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter
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Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105–06). Even gross
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negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood
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v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
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Plaintiff alleges that after he was slammed to the ground by Defendant Amezcua, he
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requested to be examined by medical staff for a medical emergency, and the request was denied.
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Plaintiff also alleges that Defendants Jane Doe 1–2 denied Plaintiff adequate medical care for the
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aggravated back injury he sustained after being slammed on the ground by Amezcua. While
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Plaintiff states that these defendants were aware of his serious medical condition when he
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requested care, there is no indication, other than Plaintiff’s conclusory allegation, that any
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defendant was aware Plaintiff had a serious medical need that could result in further significant
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injury without treatment, or that the refusal to provide such treatment was deliberately indifferent,
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rather than merely indifferent or negligent. Plaintiff fails to state a claim for deliberate
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indifference to medical care.
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3.
False Report
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The creation of false evidence, standing alone, is not actionable under § 1983. See
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Hernandez v. Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987) (independent right to accurate prison
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record has not been recognized); Johnson v. Felker, No. 1:12–cv–02719 GEB KJN (PC), 2013
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WL 6243280, at *6 (E.D. Cal. Dec. 3, 2013) (“Prisoners have no constitutionally guaranteed right
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to be free from false accusations of misconduct, so the mere falsification of a report does not give
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rise to a claim under section 1983.”) (citations omitted). Moreover, “plaintiff cannot state a
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cognizable Eighth Amendment violation based on an allegation that defendant[ ] issued a false
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rule violation against plaintiff.” Jones v. Prater, No. 2:10-cv-01381 JAM KJN P, 2012 WL
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1979225, at *2 (E.D. Cal. Jun. 1, 2012); see also Youngs v. Barretto, No. 2:16-cv-0276 JAM AC
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P, 2018 WL 2198707, at *3 (E.D. Cal. May 14, 2019) (noting that issuance of false rules violation
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report does not rise to the level of cruel and unusual punishment) (citations omitted).
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To the extent Plaintiff is attempting to bring a claim based on Defendant Amezcua filing
false charges against him, Plaintiff fails to state a cognizable claim.
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4.
State Law Claims
California’s Government Claims Act requires that a claim against the State or its
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employees “relating to a cause of action for death or for injury to person” be presented to the
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Department of General Services’ Government Claims Program no more than six months after the
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cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 945.4, 950–950.2. Presentation
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of a written claim, and action on or rejection of the claim, are conditions precedent to suit. State
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v. Super. Ct. of Kings Cty. (Bodde), 32 Cal. 4th 1234, 1245 (Cal. 2004); Mangold v. Cal. Pub.
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Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against a public entity
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or employee, a plaintiff must allege compliance with the Government Claims Act. Bodde, 32 Cal.
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4th at 1245; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621,
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627 (9th Cir. 1988).
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Plaintiff is required to comply with the claim presentation requirement for all state law
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claims raised in the complaint.1 Plaintiff alleges that he filed Government Claims on the issues
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presented in his complaint within six months of accrual of the causes of action, and a rejection
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letter was sent for claim #190000213. At the pleading stage, Plaintiff has alleged compliance
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with the claim presentation requirement for his state law claims.
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a.
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Bane Act
California Civil Code section 52.1, known as the Bane Act, authorizes a claim for relief
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“against anyone who interferes, or tries to do so, by threats, intimidation, or coercion, with an
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individual’s exercise or enjoyment of rights secured by federal or state law.” Jones v. Kmart
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Corp., 949 P.2d 941, 942 (1998). A claim under section 52.1 requires “an attempted or
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completed act of interference with a legal right, accompanied by a form of coercion.” Id. at 944.
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The essence of a Bane Act claim is that a defendant, through threats, intimidation, or coercion,
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tried to or did prevent the plaintiff from doing something that he had the right to do under the law
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or to force the plaintiff to do something that he was not required to do under the law. Austin B. v.
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Escondido Union Sch. Dist., 57 Cal. Rptr. 3d 454, 472 (Cal. Ct. App. 2007) (quotation marks
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omitted). “[T]he Bane Act imposes an additional requirement beyond a finding of a
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constitutional violation.” Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1043 (citing Cornell v.
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City & Cnty. of San Francisco, 17 Cal. App. 5th 766 (2017)). Specifically, the Bane Act’s
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“threat, intimidation, and coercion” language requires “a specific intent to violate” the right at
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issue, which may take the form of a “reckless disregard for a person’s constitutional rights[.]” Id.
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at 1045.
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At the pleading stage, Plaintiff states a cognizable claim against Defendant Amezcua for
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violation of the Bane Act when he slammed Plaintiff to the ground in retaliation for Plaintiff
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previously filing a grievance against him, and against Defendants Amezcua, Chao, and John Doe
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1–5 for forcefully moving Plaintiff despite his complaints of severe back pain. However, Plaintiff
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The Court notes, however, that California Government Code § 844.6(d) does not provide for a
private right of action, but creates a narrow exception to the immunity of public entities for
injuries to prisoners, for failure to summon medical care.
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fails to state a cognizable Bane Act claim against any other defendant for denying his request for
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medical care.
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b.
Battery
Under California law, “[a] battery is any willful and unlawful use of force or violence
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upon the person of another.” Cal. Penal Code § 242. To allege a cognizable claim for battery, a
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plaintiff must allege “that (1) the defendant intentionally did an act that resulted in harmful or
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offensive contact with the plaintiff’s person, (2) the plaintiff did not consent to the contact, and
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(3) the contact caused injury, damage, loss, or harm to the plaintiff.” Tekle v. United States, 511
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F.3d 839, 855 (9th Cir. 2007) (citation omitted).
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At the pleading stage, Plaintiff states a cognizable claim for battery against Defendants
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Amezcua for slamming Plaintiff on the ground, and against Defendants Amezcua, Chao, and John
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Doe 1–5 for forcefully moving Plaintiff despite his complaints of severe back pain.
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5.
Doe Defendants
Plaintiff names several doe defendants. “As a general rule, the use of ‘John Doe’ to
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identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).
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Plaintiff is advised that John Doe or Jane Doe defendants (i.e., unknown defendants) cannot be
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served by the United States Marshal until Plaintiff has identified them as actual individuals and
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amended his complaint to substitute names for John Doe or Jane Doe.
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III.
Conclusion and Recommendation
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Based on the above, the Court finds that Plaintiff’s first amended complaint states
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cognizable claims against: (1) Defendant Amezcua for retaliation in violation of the First
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Amendment and a related state law claim for violation of the Bane Act; (2) Defendant Amezcua
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for excessive force in violation of the Eighth Amendment and related state law claims for battery
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and violation of the Bane Act for slamming Plaintiff on the ground; and (3) Defendants Amezcua,
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Chao, and John Does 1–5 for excessive force in violation of the Eighth Amendment and related
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state law claims for battery and violation of the Bane Act for forcefully moving Plaintiff despite
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his complaints of severe pain. However, Plaintiff’s first amended complaint fails to state any
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other cognizable claims against any other defendants.
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Accordingly, is HEREBY RECOMMENDED that:
1. This action proceed on Plaintiff’s first amended complaint, filed May 6, 2024, (ECF No.
17), against:
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a. Defendant Amezcua for retaliation in violation of the First Amendment and a
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related state law claim for violation of the Bane Act;
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b. Defendant Amezcua for excessive force in violation of the Eighth Amendment and
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related state law claims for battery and violation of the Bane Act for slamming
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Plaintiff on the ground; and
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c. Defendants Amezcua, Chao, and John Does 1–5 for excessive force in violation of
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the Eighth Amendment and related state law claims for battery and violation of the
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Bane Act for forcefully moving Plaintiff despite his complaints of severe pain; 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
May 7, 2024
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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