(PC) Solorio v. Sullivan

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 ADRIAN SOLORIO, 1:19-cv-00688-NONE-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS CASE 13 vs. PROCEED AGAINST DEFENDANTS OTTSMAN AND CHAVEZ ON PLAINTIFF’S 14 SULLIVAN, et al., MEDICAL CLAIMS UNDER THE EIGHTH AMENDMENT; AND AGAINST 15 Defendants. DEFENDANTS OTTSMAN, CHAVEZ, CLAYTON, GRATOKOSKI, AND CARDENAS 16 FOR USE OF EXCESSIVE FORCE UNDER THE EIGHTH AMENDMENT; AND THAT 17 ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED FOR FAILURE TO STATE A 18 CLAIM UNDER § 1983 (ECF No. 21.) [19] OBJECTIONS, IF ANY, DUE WITHIN 20 FOURTEEN (14) DAYS [21] 22 I. BACKGROUND 23 Plaintiff filed the Complaint commencing this action on April 30, 2019, in the United 24 States District Court for the Northern District of California. (ECF No. 1.) On May 9, 2019, the 25 case was transferred to this court. (ECF No. 7.) 26 On August 17, 2020, the court screened the Complaint and found that Plaintiff stated 27 cognizable claims against defendants Ottsman and Chavez for use of excessive force against 28 Plaintiff in violation of the Eighth Amendment, but no other claims. (ECF No. 17.) The court 1 issued a screening order requiring Plaintiff to either file an amended complaint or notify the court 2 of his willingness to proceed only on the cognizable excessive force claims against defendants 3 Ottsman and Chavez. (Id.) On September 14, 2020, Plaintiff filed the First Amended Complaint. 4 (ECF No. 18.) 5 On September 25, 2020, the court screened the First Amended Complaint and issued an 6 order requiring Plaintiff to either (1) file a Second Amended Complaint, or (2) notify the court 7 of his willingness to proceed only with the excessive force claims against defendants Ottsman 8 and Chavez found cognizable by the court. (ECF No. 20.) On October 8, 2020, Plaintiff filed 9 the Second Amended Complaint which is now before the court for screening. (ECF No. 21.) 28 10 U.S.C. § 1915 . 11 II. SCREENING REQUIREMENT 12 The court is required to screen complaints brought by prisoners seeking relief against a 13 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 14 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 15 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 16 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 17 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 18 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 19 upon which relief may be granted.” 28 U.S.C. § 1915 (e)(2)(B)(ii). 20 A complaint is required to contain “a short and plain statement of the claim showing that 21 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 22 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 25 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 26 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 27 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 28 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79 ; Moss v. U.S. Secret Service, [1] 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 2 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 3 plausibility standard. Id. 4 III. SUMMARY OF SECOND AMENDED COMPLAINT 5 Plaintiff is presently incarcerated at the California Correctional Institution (CCI) in 6 Tehachapi, California, in the custody of the California Department of Corrections and 7 Rehabilitation where the events at issue in the Second Amended Complaint allegedly took place. 8 Plaintiff names as defendants W. Sullivan (Warden), Lieutenant E. Barthelmes, Sergeant (Sgt.) 9 Clayton, Sgt. Gratokoski, Sgt. Cardenas, Correctional Officer (C/O) I. Ottsman, C/O V. Chavez, 10 Dr. Caldron, and S. Jeffrey (RN) (collectively, “Defendants”). 11 A summary of Plaintiff’s allegations follows: 12 On August 10, 2018, Plaintiff was walking through the prison yard to the law library. At 13 approximately 2pm, defendants Sergeants Clayton, Gratokoski, and Cardenas ordered defendants 14 Ottsman and Chavez to approach Plaintiff because he looked a little unbalanced. Plaintiff suffers 15 from a disability of his legs. Defendants collectively summoned several other correctional staff. 16 Plaintiff was harassed with obscenities by staff. Plaintiff replied to Defendants that he was not 17 breaking the law, just going to the law library. Defendants again replied with jokes about 18 Plaintiff’s balance and how stupid he walks. Defendants handcuffed Plaintiff and performed a 19 routine strip search to embarrass prisoners, but this time Defendants thought Plaintiff may be 20 under the influence of alcohol and did not believe he was disabled. Defendants took him to an 21 isolated part of the prison, still in handcuffs, and threw him to the ground. Then defendants 22 Ottsman and Chavez punched and kicked him. Plaintiff replied that he wanted to talk to superiors 23 because this was an injustice and they were not supposed to treat anyone this way. Defendants 24 made statements such as, “Look stupid mother fu**er, this is our prison, our gang, and we can 25 do whatever we want.” (ECF No. 21 at 5.) Defendants Clayton, Gratokoski, and Cardenas 26 arrived and instead of summoning medical assistance, they ordered that more pain be applied to 27 Plaintiff. 28 Defendants Clayton, Gratokoski, and Cardenas ordered correctional officers to stop and 1 frisk Plaintiff, then ordered them to physically brutalize Plaintiff for complaining. The officers 2 dragged Plaintiff from the floor and defendants Chavez and Ottsman struck and kicked Plaintiff 3 all over his body while he was in handcuffs, then refused to summon medical assistance. Plaintiff 4 put in a medical request after the brutal attack and was ignored by defendants RN Jeffrey and Dr. 5 Caldron, who were not properly trained to summon medical assistance or to refrain from altering 6 and covering up records. It took forever before Plaintiff was given an appointment for his 7 medical needs. Plaintiff was bleeding severely through his nose, had severe pain to his legs and 8 suffered a concussion and a dented forehead. Plaintiff had a serious medical need, and failure to 9 treat Plaintiff’s condition resulted in further significant injury and unnecessary wanton infliction 10 of pain. Defendants Caldron’s and Jeffrey’s responses to Plaintiff were deliberately indifferent 11 when they ignored all of the medical requests Plaintiff sent them to cover up medical records and 12 abuse their medical power. The delay in Plaintiff receiving medical treatment led to severe 13 chronic pain. Plaintiff is unable to enjoy regular things prisoners do, and he now suffers from 14 mental and emotional distress due to flashbacks and substantial risk of losing his life and serious 15 harm. 16 As relief, Plaintiff seeks monetary damages, including punitive damages, a declaratory 17 judgment, and costs of suit. 18 IV. PLAINTIFF’S CLAIMS 19 The Civil Rights Act under which this action was filed provides: 20 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to 21 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 22 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . [24] 42 U.S.C. § 1983 . 25 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 26 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386 , 27 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137 , 144 n.3 (1979)); see also Chapman v. 28 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 1 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730 , 734 (9th Cir. 2012); Anderson v. 2 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law 3 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the 4 federal Constitution, Section 1983 offers no redress.” Id. 5 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 6 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution 7 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 8 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 9 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 10 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 11 which he is legally required to do that causes the deprivation of which complaint is made.’” 12 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175 , 1183 (9th Cir. 2007) (quoting 13 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 14 established when an official sets in motion a ‘series of acts by others which the actor knows or 15 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 16 F.3d at 1183 (quoting Johnson, 588 F.2d at 743 ). This standard of causation “closely resembles 17 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., [18] 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010 , 19 1026 (9th Cir. 2008). 20 A. Medical Claim – Eighth Amendment 21 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 22 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091 , 23 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for 24 deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 25 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury 26 or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need 27 was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050 , 28 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 , 1 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown 2 by “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm 3 caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060 ). Deliberate indifference 4 may be manifested “when prison officials deny, delay or intentionally interfere with medical 5 treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. 6 Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to 7 further harm in order for the prisoner to make a claim of deliberate indifference to serious medical 8 needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404 , 9 407 (9th Cir. 1985)). 10 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051 , 11 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the 12 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but 13 that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 14 825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not, then the 15 official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting 16 Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of 17 medical malpractice or negligence is insufficient to establish a constitutional deprivation under 18 the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a 19 constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)). 20 “A difference of opinion between a prisoner-patient and prison medical authorities 21 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337 , 22 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the course 23 of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . 24 that they chose this course in conscious disregard of an excessive risk to plaintiff’s health.” 25 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted). 26 The court finds that Plaintiff states a cognizable medical claim against Defendants 27 Chavez and Ottoman for failing to summon medical care for Plaintiff after they punched and [28] 1 kicked Plaintiff, causing severe bleeding from his nose, pain to his legs, a concussion, and a 2 dented forehead. 3 Plaintiff alleges that Dr. Caldron and Nurse Jeffrey ignored the requests for medical care 4 he sent them. However, Plaintiff fails to allege facts showing that defendants Caldron and Jeffrey 5 were aware of Plaintiff’s medical needs and yet deliberately responded unreasonably. Plaintiff 6 alleges that it “took forever” for him to get a medical appointment, but he does not explain how 7 long it actually took (hours, days, weeks), who he finally met with, or what treatment he received. 8 Thus, Plaintiff’s allegations against Dr. Caldron and Nurse Jeffrey are conclusory and 9 insufficient to state an Eighth Amendment medical claim against him. 10 Therefore, the court finds that Plaintiff states medical claims under the Eighth 11 Amendment against defendants Chavez and Ottoman, but not against any of the other 12 Defendants. 13 B. Excessive Force – Eighth Amendment 14 What is necessary to show sufficient harm for purposes of the Cruel and Unusual 15 Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . .” Hudson 16 v. McMillian, 503 U.S. 1, 8 (1992). “The objective component of an Eighth Amendment claim 17 is . . . contextual and responsive to contemporary standards of decency.” Id. (internal quotation 18 marks and citations omitted). The malicious and sadistic use of force to cause harm always 19 violates contemporary standards of decency, regardless of whether or not significant injury is 20 evident. Id. at 9 ; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment 21 excessive force standard examines de minimis uses of force, not de minimis injuries)). However, 22 not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Id. at 9. 23 “The Eighth Amendment’s prohibition of cruel and unusual punishments necessarily excludes 24 from constitutional recognition de minimis uses of physical force, provided that the use of force 25 is not of a sort ‘repugnant to the conscience of mankind.” Id. at 9-10 (internal quotations marks 26 and citations omitted). 27 “[W]henever prison officials stand accused of using excessive physical force in violation 28 of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was 1 applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to 2 cause harm.” Id. at 7. “In determining whether the use of force was wanton and unnecessary, it 3 may also be proper to evaluate the need for application of force, the relationship between that 4 need and the amount of force used, the threat reasonably perceived by the responsible officials, 5 and any efforts made to temper the severity of a forceful response.” Id. (internal quotation marks 6 and citations omitted). “The absence of serious injury is . . . relevant to the Eighth Amendment 7 inquiry, but does not end it.” Id. 8 The court find that Plaintiff states cognizable claims against defendants Ottsman and 9 Chavez, for use of excessive force against Plaintiff in violation of the Eighth Amendment. 10 Plaintiff also states claims for use of excessive force against Defendants Clayton, 11 Gratokoski, and Cardenas for ordering defendants Ottsman and Chavez to physically brutalize 12 Plaintiff when he complained about the way he was being treated. There is no respondeat 13 superior liability under [§] 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations 14 omitted), and each Defendant is only liable for his or her own misconduct. Here, Plaintiff has 15 demonstrated that defendants Clayton, Gratokoski, and Cardenas through their own individual 16 actions, violated Plaintiff’s constitutional rights. Iqbal, 556 U.S. at 676-77 (emphasis added). 17 The required causal connection between supervisor conduct and the deprivation of a 18 constitutional right is established either by direct personal participation or by setting in motion a 19 “series of acts by others which the actor knows or reasonably should know would cause others 20 to inflict the constitutional injury.” Johnson, 588 F.2d at 743-44 . Here, defendants Clayton, 21 Gratokoski, and Cardenas set in motion the excessive force acts by defendants Ottsman and 22 Chavez against Plaintiff by ordering that Plaintiff be brutalized. 23 Therefore, the court finds that Plaintiff states cognizable claims against defendants 24 Ottsman, Chavez, Clayton, Gratokoski, and Cardenas for use of excessive force in violation of 25 the Eighth Amendment. 26 C. Equal Protection -- Discrimination 27 The Equal Protection Clause requires the State to treat all similarly situated people 28 equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 , 105 S.Ct. 3249 , 87 1 L.Ed.2d 313 (1985). This does not mean, however, that all prisoners must receive identical 2 /// 3 treatment and resources. See Cruz v. Beto, 405 U.S. 319 , 322 n. 2 (1972); Ward v. Walsh, 1 F.3d 4 873, 880 (9th Cir. 1993); Allen v. Toombs, 827 F.2d 563 , 568–69 (9th Cir. 1987). 5 “To prevail on an Equal Protection claim brought under § 1983, Plaintiff must allege facts 6 plausibly showing that ‘“the defendants acted with an intent or purpose to discriminate against 7 [them] based upon membership in a protected class,’” (citing see Thornton v. City of St. Helens, [8] 425 F.3d 1158, 1166 (9th Cir. 2005) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th 9 Cir. 2001)), or that similarly situated individuals were intentionally treated differently without a 10 rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553 11 U.S. 591, 601-02 , 128 S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564 , [12] 120 S.Ct. 1073 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North 13 Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 14 Here, Plaintiff has not alleged facts demonstrating that he was intentionally discriminated 15 against on the basis of his membership in a protected class, or that he was intentionally treated 16 differently than other similarly situated inmates without a rational relationship to a legitimate 17 state purpose. Therefore, the court finds that Plaintiff fails to state a claim for relief for violation 18 of his right to equal protection. 19 D. Cover Up 20 Plaintiff alleges that defendants Dr. Caldron and Nurse Jeffrey covered up Plaintiff’s 21 medical treatment by altering records. To the extent that Plaintiff attempts to raise a cover-up 22 claim, it is premature. Allegations that officials engaged in a cover-up state a constitutional claim 23 only if the cover-up deprived a plaintiff of his right of access to courts by causing him to fail to 24 obtain redress for the constitutional violation that was the subject of the cover-up. Dell v. 25 Espinoza, No. 116CV1769MJSPC, 2017 WL 531893 , at *6–7 (E.D. Cal. Feb. 7, 2017) (citing 26 see Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621 , 625 (9th Cir. 1988) (cover-up 27 “allegations may state a federally cognizable claim provided that defendants’ actions can be [28] 1 causally connected to a failure to succeed in the present lawsuit.”)); Rose v. City of Los Angeles, [2] 814 F. Supp. 878, 881 (C.D. Cal. 1993). 3 /// 4 A cover-up claim is premature when, as here, Plaintiff’s action seeking redress for the 5 underlying constitutional violations remains pending. See Karim-Panahi, 839 F.2d at 625 (claim 6 alleging police cover-up of misconduct was premature when action challenging misconduct was 7 pending); Rose, 814 F. Supp. at 881 (“Because the ultimate resolution of the present suit remains 8 in doubt, [p]laintiff’s cover-up claim is not ripe for judicial consideration.”) 9 Therefore, the court finds that Plaintiff fails to state a cognizable claim against any of the 10 defendants participating in a cover up. 11 E. Verbal Harassment 12 Plaintiff is advised that mere verbal harassment or abuse does not violate the Constitution 13 and, thus, does not give rise to a claim for relief under 42 U.S.C. § 1983 . Oltarzewski v. 14 Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Even verbal threats, without more, do not rise to 15 the level of a constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). 16 Therefore, the court finds that Plaintiff fails to state a claim against any of the defendants 17 for verbal harassment against him. 18 F. State Law Claims 19 Plaintiff alleges that defendants Caldron and Jeffrey were not properly trained to summon 20 medical assistance or to refrain from altering and covering up records. These are state law claims. 21 Plaintiff is informed that violation of state tort law, state regulations, rules and policies of the 22 CDCR, or other state law is not sufficient to state a claim for relief under § 1983. Section 1983 23 does not provide a cause of action for violations of state law. See Galen v. Cnty. of Los Angeles, [24] 477 F.3d 652 , 662 (9th Cir. 2007). To state a claim under § 1983, there must be a deprivation of 25 federal constitutional or statutory rights. See Paul v. Davis, 424 U.S. 693 (1976); also see 26 Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995); Gonzaga University v. Doe, 536 27 U.S. 273 , 279 (2002). Although the court may exercise supplemental jurisdiction over state law [28] 1 claims, Plaintiff must first have a cognizable claim for relief under federal law. See 28 U.S.C. § 2 1367. 3 Plaintiff is also advised that the Government Claims Act requires exhaustion of state law 4 claims with California’s Victim Compensation and Government Claims Board, and Plaintiff is 5 required to specifically allege compliance in his complaint. Shirk v. Vista Unified Sch. Dist., 42 6 Cal.4th 201 , 208-09 (Cal. 2007); State v. Superior Court of Kings Cnty. (Bodde), 32 Cal.4th 7 1234, 1239 (Cal. 2004); Mabe v. San Bernardino Cnty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101 , 8 1111 (9th Cir. 2001); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470 , 1477 (9th Cir. 9 1995); Karim-Panahi, 839 F.2d at 627. Plaintiff has not done so. 10 Therefore, the court finds that Plaintiff fails to state any claims for violation of state law. 11 G. Declaratory Relief 12 Besides monetary damages and costs of suit, Plaintiff requests a declaratory judgment. 13 A request for declaratory relief should be denied because it is subsumed by Plaintiff’s damages 14 claim. See Rhodes v. Robinson, 408 F.3d 559 , 565-66 n.8 (9th Cir. 2005) (because claim for 15 damages entails determination of whether officers’ alleged conduct violated plaintiff’s rights, the 16 separate request for declaratory relief is subsumed by damages action); see also Fitzpatrick v. 17 Gates, No. CV 00-4191-GAF (AJWx), 2001 WL 630534 , at *5 (C.D. Cal. Apr. 18, 2001) 18 (“Where a plaintiff seeks damages or relief for an alleged constitutional injury that has already 19 occurred declaratory relief generally is inappropriate[.]”) 20 Therefore, the court finds that Plaintiff’s claim for a declaratory judgment should be 21 dismissed. 22 V. RECOMMENDATIONS AND CONCLUSION 23 For the reasons set forth above, the court finds that Plaintiff states cognizable claims in 24 the Second Amended Complaint against Defendants Ottsman and Chavez on Plaintiff’s medical 25 claims under the Eighth Amendment; and against Defendants Ottsman, Chavez, Clayton, 26 Gratokoski, and Cardenas for use of excessive force under the Eighth Amendment. 27 Therefore, based on the foregoing, IT IS HEREBY RECOMMENDED that: 28 1. This case proceed against Defendants Ottsman and Chavez on Plaintiff’s medical 1 claims under the Eighth Amendment; and against Defendants Ottsman, Chavez, 2 Clayton, Gratokoski, and Cardenas for use of excessive force under the Eighth 3 Amendment, and all other claims and defendants be dismissed from this action 4 based on Plaintiff’s failure to state a claim; 5 2. Defendants W. Sullivan (Warden), Lieutenant E. Barthelmes, Dr. Caldron, and S. 6 Jeffrey (RN) be dismissed from this action based on Plaintiff’s failure to state any 7 claims against them; 8 3. Plaintiff’s claims for violation of equal protection, verbal harassment, cover up of 9 records, declaratory relief, and state law violations be dismissed from this action 10 based on Plaintiff’s failure to state a claim; and 11 4. This case be referred back to the Magistrate Judge for further proceedings, 12 including initiation of service. 13 These findings and recommendations will be submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen days 15 of the date of service of these findings and recommendations, Plaintiff may file written objections 16 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 17 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 18 time may result in waiver of the right to appeal the district court’s order. Wilkerson v. Wheeler, [19] 772 F.3d 834, 839 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 20 Cir. 1991)). [21] IT IS SO ORDERED. [22] 23 Dated: March 29, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE