Mark R. Frisby v. The State of California Department of Justice

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 MARK R. FRISBY, Case No. 5:19-cv-01249-DSF (MAA) 12 Plaintiff, MEMORANDUM DECISION AND ORDER DISMISSING FIRST 13 v. AMENDED COMPLAINT WITH 14 LEAVE TO AMEND THE STATE OF CALIFORNIA 15 DEPARTMENT OF JUSTICE, 16 Defendant. 1 17 8 19 I. INTRODUCTION 20 On July 8, 2019, Plaintiff Mark. R. Frisby (“Plaintiff”), proceeding pro se, 21 filed a Complaint alleging violations of his civil rights pursuant to 42 U.S.C. § 1983 22 (“Section 1983”). (Compl., ECF No. 1.) On August 7, 2019, the Court dismissed 23 the Complaint with leave to amend. (Order Dismiss Compl., ECF No. 8) Plaintiff 24 filed a First Amended Complaint (“FAC”) on October 25, 2019. (FAC, ECF No. 25 12.) The Court has screened the FAC as prescribed by 28 U.S.C. § 1915A and 28 26 U.S.C. § 1915 (e)(2)(B). For the reasons stated below, the FAC is DISMISSED 27 WITH LEAVE TO AMEND. Plaintiff is ORDERED to, within thirty days after 28 /// 1 the date of this Order, either: (1) file a Second Amended Complaint (“SAC”), or 2 (2) advise the Court that Plaintiff does not intend to file a SAC. [3] II. PLAINTIFF’S ALLEGATIONS AND CLAIMS1 [4] The FAC is filed against the following defendants: (1) Dr. Jack Rothberg, [5] psychologist at Los Angeles County Jail; (2) “Dr./Mr. Ruiz,” psychologist at Los [6] Angeles County Jail; (3) L. Smith, officer at San Bernardino County Jail; (4) Lloyd, [7] guard at San Bernardino County Jail; and (5) Judge Leslie Swain, Los Angeles [8] Superior Court (each, a “Defendant,” and collectively, “Defendants”). (FAC 3–4.)2 [9] Each Defendant is sued in his or her official capacity. (Id.) [10] At Los Angeles County Jail, Defendant Ruiz made multiple threats of rape [11] and genital mutilation to Plaintiff and denied him clothing and hygiene products. [12] (Id. at 5.) Defendant Rothberg performed medical malpractice by misdiagnosing [13] Plaintiff with multiple mental disorders, resulting in defamation, prolonged [14] interrogation, and denial of Plaintiff’s right to trial. (Id. at 7.) [15] At San Bernardino County Jail, Defendants Smith and Lloyd kept Plaintiff in [16] extended isolation for over 100 days. (Id. at 7–8.) Defendant Smith acted to [17] deliberately deny Plaintiff the minimal civilized measures by locking him in a cell [18] without letting him out for exercise or a shower for over 100 days. (Id. at 8.) [19] During such period, Defendant Lloyd denied Plaintiff the right to speak with an [20] attorney and the right to access legal materials for the purpose of making forward21 looking motions, including a “P.C. § 1381” demand for trial, a “P.C. § 1382” motion [22] to dismiss, motion for new pre-trial evidentiary hearing since Plaintiff’s Feretta [23] rights were revoked, motion to dismiss attempted murder charges due to lack of [24] evidence, motion to reduce bail, and motion for appointment of counsel. (Id. at 6.) [25] 26 1 The Court summarizes Plaintiff’s allegations and claims as set forth in the FAC, 27 without opining on their veracity or merit. 28 2 Citations to pages in docketed documents reference those generated by CM/ECF. 1 Defendant Swain denied Plaintiff the right to represent himself, ordered 2 Plaintiff to be returned to the same custody where reported abuse was taking place, 3 and ordered Plaintiff to be placed on medication. (Id. at 7.) 4 The aforementioned Defendants in conjunction with unknown members of 5 law enforcement conspired to torture Plaintiff for almost two years in an effort to 6 obtain a confession. (Id.) 7 Based on these allegations, Plaintiff asserts four claims: (1) First 8 Amendment; (2) First Amendment access-to-courts; (3) Fifth Amendment and 9 Miranda v. Arizona, 384 U.S. 436 (1966) (“Miranda”); and (4) Eighth Amendment. 10 (Id. at 5–8). Plaintiff seeks $400,000 in monetary compensation. (Id. at 9.) [11] 12 III. LEGAL STANDARD 13 Federal courts must conduct a preliminary screening of any case in which a 14 prisoner seeks redress from a governmental entity or officer or employee of a 15 governmental entity (28 U.S.C. § 1915A), or in which a plaintiff proceeds in forma 16 pauperis ( 28 U.S.C. § 1915 (e)(2)(B)). The court must identify cognizable claims 17 and dismiss any complaint, or any portion thereof, that is: (1) frivolous or 18 malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks 19 monetary relief from a defendant who is immune from such relief. 28 U.S.C. 20 §§ 1915A(b), 1915(e)(2)(B). 21 When screening a complaint to determine whether it fails to state a claim upon 22 which relief can be granted, courts apply the Federal Rule of Civil Procedure 23 12(b)(6) (“Rule 12(b)(6)”) standard. See Wilhelm v. Rotman, 680 F.3d 1113 , 1121 24 (9th Cir. 2012) (applying the Rule 12(b)(6) standard to 28 U.S.C. § Section 1915A); 25 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (applying the Rule 12(b)(6) 26 standard to 28 U.S.C. § 1915 (e)(2)(B)(ii)). “Dismissal under Rule 12(b)(6) is 27 appropriate only where the complaint lacks a cognizable legal theory or sufficient 28 facts to support a cognizable legal theory.” Hartmann v. Cal. Dep’t of Corr. & 1 Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp. 2 Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). 3 Rule 12(b)(6) is read in conjunction with Federal Rule of Civil Procedure 8(a) 4 (“Rule 8”), “which requires not only ‘fair notice of the nature of the claim, but also 5 grounds on which the claim rests.’” See Li v. Kerry, 710 F.3d 995, 998 (9th Cir. 6 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 556 n.3 (2007)). In 7 reviewing a motion to dismiss, the court will accept the plaintiff’s factual allegations 8 as true and view them in the light most favorable to the plaintiff. Park v. Thompson, 9 851 F.3d 910, 918 (9th Cir. 2017). Although “detailed factual allegations” are not 10 required, “[t]hreadbare recitals of the elements of a cause of action, supported by 11 mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662 , 678 12 (2009). “Conclusory allegations of law . . . are insufficient to defeat a motion to 13 dismiss.” Park, 851 F.3d at 918 (alteration in original) (quoting Lee v. City of Los 14 Angeles, 250 F.3d 668, 679 (9th Cir. 2001)). Rather, a complaint must “contain 15 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 16 on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570 ). “A claim 17 has facial plausibility when the plaintiff pleads factual content that allows the court 18 to draw the reasonable inference that the defendant is liable for the misconduct 19 alleged.” Iqbal, 556 U.S. at 663 . “If there are two alternative explanations, one 20 advanced by defendant and the other advanced by plaintiff, both of which are 21 plausible, plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6).” 22 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). “Plaintiff’s complaint may be 23 dismissed only when defendant’s plausible alternative explanation is so convincing 24 that plaintiff’s explanation is implausible.” Id. 25 Where a plaintiff is pro se, particularly in civil rights cases, courts should 26 construe pleadings liberally and afford the plaintiff any benefit of the doubt. 27 Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). “[B]efore dismissing a pro 28 se complaint the district court must provide the litigant with notice of the 1 deficiencies in his complaint in order to ensure that the litigant uses the opportunity 2 to amend effectively.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) 3 (quoting Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)). A court should 4 grant a pro se plaintiff leave to amend a defective complaint “unless it is absolutely 5 clear that the deficiencies of the complaint could not be cured by amendment.” 6 Akhtar, 698 F.3d at 1212 (quoting Shucker v. Rockwood, 846 F.2d 1202 , 1203–04 7 (9th Cir. 1988) (per curiam)). [8] 9 IV. DISCUSSION 10 A. Judicial Immunity Bars the Claims Against Defendant Swain. 11 Section 1983 “was not intended to abolish the doctrine of judicial immunity.” 12 Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986). “Judges are absolutely 13 immune from civil liability for damages for their judicial acts.” Mullis v. U.S. 14 Bankr. Court for Dist. of Nev., 828 F.2d 1385, 1388 (9th Cir. 1987). An act is 15 judicial in nature if “it is a function normally performed by a judge, and to the 16 expectations of the parties, i.e., whether they dealt with the judge in his judicial 17 capacity.” Ashelman, 793 F.2d at 1075 (quoting Stump v. Sparkman, 435 U.S. 349 , 18 362 (1978)). A “judge will not be deprived of immunity because the action he took 19 was in error, was done maliciously, or was in excess of his authority . . . .” Sadoski 20 v. Mosley, 435 F.3d 1076, 1079 (9th Cir. 2006) (quoting Stump, 435 U.S. at 356 ). A 21 judge will be stripped of absolute judicial immunity only where he or she “acts in 22 the clear absence of all jurisdiction.” Sadoski, 435 F.3d at 1079 (quoting Stump, 435 23 U.S. at 356–57) (quotation marks omitted). 24 Here, the FAC alleges that Defendant Swain denied Plaintiff his right to 25 represent himself, ordered Plaintiff to be returned to the same custody where 26 reported abuse was taking place, and ordered Plaintiff to be placed on medication. 27 (FAC 7.) The issuance of orders is “beyond dispute” a judicial act for which 28 Defendant Swain is entitled to absolute immunity. See, e.g., Kinney v. Cantil1 Sakauye, No. 17-cv-01607-DMR, 2017 U.S. Dist. LEXIS 215439 , at *13 (N.D. Cal. 2 Aug. 21, 2017) (finding that state court judges are absolutely immune with respect to 3 issuance of adverse orders). In addition, there are no allegations to suggest that 4 Defendant Swain was acting in the “clear absence of all jurisdiction,” such that 5 judicial immunity would not apply. See Ashelman, 793 F.2d at 1075–76 (“To 6 determine if the judge acted with jurisdiction, courts focus on whether the judge was 7 acting clearly beyond the scope of subject matter jurisdiction in contrast to personal 8 jurisdiction.”) 9 For these reasons, judicial immunity protects Defendant Swain from damages 10 liability. If Plaintiff files an amended complaint with damages claims against 11 Defendant Swain for her judicial acts, such claims will be subject to dismissal. [12] 13 B. The FAC Fails to State Claims Against the Counties of Los 14 Angeles and San Bernardino. 15 A suit against a defendant in his or her individual capacity “seek[s] to impose 16 personal liability upon a government official for actions he takes under color of 17 state law . . . . Official-capacity suits, in contrast, ‘generally represent only another 18 way of pleading an action against an entity of which an officer is an agent.’” 19 Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citations omitted) (quoting Monell 20 v. Dep’t of Social Servs., 436 U.S. 658 , 690 n.55 (1978)). “[A]n official-capacity 21 suit is, in all respects other than name, to be treated as a suit against the entity.” 22 Kentucky, 473 U.S. at 166 . 23 The FAC alleges that Defendants Rothberg and Ruiz work at Los Angeles 24 County Jail (FAC 3), and that Defendants Smith and Lloyd work at San Bernardino 25 County Jail (id. at 3–4). The official capacity claims against Defendants Rothberg 26 and Ruiz are treated as claims against Los Angeles County. See Mendiola-Martinez 27 v. Arpaio, 836 F.3d 1239, 1250 (9th Cir. 2016) (explaining that claims against 28 county sheriff sued in his official capacity are treated as claims against the county). 1 Similarly, the official capacity claims against Defendants Smith and Lloyd are 2 treated as claims against San Bernardino County. See id. 3 Local governments and municipalities are “persons” subject to liability under 4 Section 1983, and are not wholly immune from suit under Section 1983. See 5 Monell, 436 U.S. at 690 . However, “a municipality cannot be held liable solely 6 because it employs a tortfeasor—or in other words, a municipality cannot be held 7 liable under Section 1983 on a respondeat superior theory.” Id. at 691 . Instead, 8 local governments, such as the Counties of Los Angeles and San Bernardino, are 9 liable in a Section 1983 action only if the plaintiff’s “injury was inflicted pursuant to 10 the local government’s policy, regulation, custom, or usage.” Chew v. Gates, 27 11 F.3d 1432 , 1444 (9th Cir. 1994) (citing Monell, 436 U.S. at 690–91). The local 12 government policy “need only cause a constitutional violation; it need not be 13 unconstitutional per se.” Jackson v. Gates, 975 F.2d 648, 654 (9th Cir. 1992). 14 Local government policy “‘causes’ an injury where it is the ‘moving force’ behind 15 the constitutional violation, or where ‘the [local government] itself is the 16 wrongdoer.’” Chew, 27 F.3d at 1444 (citations omitted). There must be a “direct 17 causal link between a municipal policy or custom and the alleged constitutional 18 deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). 19 Here, the FAC does not identify any Los Angeles or San Bernardino County 20 policy, regulation, or custom that caused Plaintiff’s injuries. Rather, the FAC 21 alleges discrete acts by each of the Defendants. (See generally FAC 5–8.) Thus, 22 the FAC does not state any Section 1983 claims against the Counties of Los 23 Angeles or San Bernardino. See Chew, 27 F.3d at 1444 (“Under the Monell 24 doctrine, [plaintiff] may recover from the [local government] if his injury was 25 inflicted pursuant to city policy, regulation, custom, or usage.”). 26 For these reasons, Plaintiff’s official capacity claims against Defendants fail. 27 If Plaintiff files an amended complaint with claims against Los Angeles and/or San 28 Bernardino Counties, or claims against Defendants Rothberg and/or Ruiz (Los 1 Angeles County) and Defendants Smith and/or Lloyd (San Bernardino County) in 2 their official capacities, he must correct these deficiencies or risk dismissal of such 3 claims. [4] 5 C. The FAC Fails to State a Cognizable Section 1983 Claim. 6 Section 1983 provides a cause of action against “every person who, under 7 color of any statute . . . of any State . . . subjects, or causes to be subjected, any 8 citizen . . . to the deprivation of any rights, privileges, or immunities secured by the 9 Constitution and laws . . . .” Wyatt v. Cole, 504 U.S. 158, 161 (1992) (alterations in 10 original) (quoting 42 U.S.C. § 1983 ). The purpose of Section 1983 is “to deter state 11 actors from using the badge of their authority to deprive individuals of their 12 federally guaranteed rights and to provide relief to victims if such deterrence fails.” 13 Wyatt, 504 U.S. at 161 . To state a claim under Section 1983, a plaintiff must 14 allege: (1) a right secured by the Constitution or laws of the United States was 15 violated; and (2) the alleged violation was committed by a person acting under 16 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). [17] 18 1. The FAC Fails to State a First Amendment Access-To19 Courts Claim. 20 The FAC asserts that Defendant Lloyd violated Plaintiff’s First Amendment 21 rights by denying Plaintiff the “right to speak with an attorney and the right to 22 access legal materials for the purpose of making forward looking motions to the 23 court for over 100 days.” (FAC 6.) Specifically, the FAC alleges that Plaintiff was 24 denied the right to file a “P.C. § 1382” demand for trial, “P.C. § 1382” motion to 25 dismiss, motion for new pre-trial evidentiary hearing, motion to dismiss attempted 26 murder charges due to lack of evidence, motion to reduce bail, and motion for 27 appointment of counsel. (Id.) 28 /// 1 Prisoners have a constitutional right of access to the courts, protected by the 2 First Amendment right to petition. See Silva v. Di Vittorio, 658 F.3d 1090 , 1103 3 (9th Cir. 2011). The right “guarantees no particular methodology but rather the 4 conferral of a capability—the capability of bringing contemplated challenges to 5 sentences or conditions of confinement before the courts . . . . [I]t is this capability, 6 rather than the capability of turning pages in a law library, that is the touchstone” of 7 the right of access to the courts. Lewis v. Casey, 518 U.S. 343 , 356–57 (1996). The 8 right is limited to non-frivolous direct criminal appeals, habeas corpus petitions, and 9 Section 1983 civil rights actions to vindicate basic constitutional rights. Id. at 354– 10 55; Simmons v. Sacramento Cty. Superior Court, 318 F.3d 1156 , 1159–60 (9th Cir. 11 2003). 12 The Supreme Court has identified two categories of access-to-court claims. 13 Christopher v. Harbury, 536 U.S. 403 , 412–13 (2002). The first category consists 14 of “forward-looking” claims, which allege that official action presently is frustrating 15 the plaintiff’s ability to prepare and file a suit at the present time. Id. at 413 . The 16 object of “forward-looking” claims is to “place the plaintiff in a position to pursue a 17 separate claim for relief once the frustrating condition has been removed.” Id. The 18 second category consists of “backward-looking” claims, which allege that due to 19 official action, a specific case “cannot now be tried (or tried with all material 20 evidence), no matter what official action may be in the future.” Id. at 413–14. 21 These cases look “backward to a time when specific litigation ended poorly, or 22 could not have commenced, or could have produced a remedy subsequently 23 unobtainable.” Id. at 414 . 24 To state a claim for denial of access to the courts, a plaintiff must establish 25 that he or she suffered an “actual injury”—that is, “actual prejudice with respect to 26 contemplated or existing litigation, such as the inability to meet a filing deadline or 27 to present a claim.” Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 28 2011) (quoting Lewis, 518 U.S. at 348–49). “Actual injury is a jurisdictional 1 requirement that flows from the standing doctrine and may not be waived.” Nev. 2 Dep’t of Corr., 648 F.3d at 1018 . However, even if delays in providing legal 3 materials or assistance result in actual injury, they are “not of constitutional 4 significance” if “they are the product of prison regulations reasonably related to 5 legitimate penological interests.” Lewis, 518 U.S. at 362 . 6 Plaintiff’s First Amendment access-to-courts claim fails for two reasons. 7 First, the motions he allegedly was prevented from filing—a “P.C. § 1382” demand 8 for trial, “P.C. § 1382” motion to dismiss, motion for new pre-trial evidentiary 9 hearing, motion to dismiss attempted murder charges due to lack of evidence, 10 motion to reduce bail, and motion for appointment of counsel—do not appear to be 11 the types of petitions protected by the First Amendment. (FAC 6.) The right to 12 access court is limited to non-frivolous direct criminal appeals, habeas corpus 13 petitions, and Section 1983 civil rights actions to vindicate basic constitutional 14 rights. Lewis, 518 U.S. at 354–55. 15 Second, the allegations in the FAC are too general and do not lead to the 16 reasonable conclusion that Plaintiff suffered an “actual injury”—that is, that Plaintiff 17 suffered actual prejudice as a result of Defendant Lloyd’s specific acts. See Nev. 18 Dep’t of Corr., 648 F.3d at 1018 . Plaintiff must identify “some specific instance in 19 which [he] was actually denied access to the courts.” See Allen v. Sakai, 48 F.3d 20 1082, 1090 (9th Cir. 1994) (alteration in original) (quoting Lewis, 886 F.2d at 1171). 21 In addition, Plaintiff must identify the specific injury that he suffered as a 22 consequence of each incident. See Williams v. County of Ventura, No. CV 07-765523 AHM (MLG), 2009 U.S. Dist. LEXIS 110167 , at * 26–27 (C.D. Cal. Aug. 7, 2009) 24 (dismissing First Amendment access-to-courts claim based on denial of access to 25 legal materials because, inter alia, “although Plaintiff has alleged that he has missed 26 deadlines for filings in the federal and state courts as a result of the withholding of 27 his legal materials, he has not stated whether his omissions led to the dismissal of 28 his actions or any other adverse consequences.”) 1 For these reasons, Plaintiff’s First Amendment access-to-court claim fails. 2 This is Plaintiff’s second failed attempt to plead a First Amendment access-to-court 3 claim. (See Order Dismiss Compl. 13-15.) The Court will give Plaintiff one more 4 opportunity to state this claim. If Plaintiff files an amended complaint with a First 5 Amendment access-to-court claim, he must correct its deficiencies or risk dismissal. [6] 7 2. The FAC Fails to State a Claim for Violation of the 8 Fifth Amendment or Miranda. 9 The FAC asserts a violation of the Fifth Amendment and Miranda based on 10 the allegation that “[t]he aforementioned defendants in conjunction with unknown 11 members of Law enforcement conspired to torture the plaintiff for almost two years 12 in an effort to obtain a confession.” (FAC 7.) 13 The Fifth Amendment provides that “no person . . . shall be compelled in any 14 criminal case to be a witness against himself.” U.S. Const. amend. V. To establish a 15 Fifth Amendment claim, a Plaintiff must show: “(1) that the testimony desired by 16 the government carried the risk of incrimination”; and “(2) that the penalty he 17 suffered amounted to compulsion.” United States v. Antelope, 395 F.3d 1128 , 1134 18 (9th Cir. 2005). “[T]he core protection afforded by the Self-Incrimination Clause is 19 a prohibition on compelling a criminal defendant to testify against himself at trial.” 20 United States v. Patane, 542 U.S. 630, 637 (2004). The Fifth Amendment “may 21 only be invoked when the threat of future criminal prosecution is reasonably 22 particular and apparent.” Antelope, 395 F.2d at 1134. “Only after a compelled 23 incriminating statement is used in a criminal proceeding has an accused suffered the 24 requisite constitutional injury for purposes of a §1983 action.” Aguilera v. Baca, [25] 510 F.3d 1161, 1173 (9th Cir. 2007). 26 “[T]he Miranda rule is a prophylactic employed to protect against violations 27 of the Self-Incrimination Clause.” Patane, 542 U.S. at 636 . “[A] mere failure to 28 give Miranda warnings does not, by itself, violate a suspect’s constitutional rights or 1 even the Miranda rule.” Id. at 641 . “[P]olice do not violate a suspect’s 2 constitutional rights (or the Miranda rule) by negligent or even deliberate failures to 3 provide the suspect with the full panoply of warnings prescribed by Miranda. 4 Potential violations occur, if at all, only upon the admission of unwarned statements 5 into evidence at trial.” Id. This “follows from the nature of the right protected by 6 the Self-Incrimination, which the Miranda rule, in turn, protects. It is ‘a 7 fundamental trial right.’” Id. (quoting Withrow v. Williams, 507 U.S. 680 , 691 8 (1993)). 9 Here, Plaintiff has not alleged any facts to support the reasonable inference 10 that any compelled statements Plaintiff made were used against him in a criminal 11 proceeding. See Aguilera, 510 F.3d at 1173 ; Patane, 542 U.S. at 641 . For these 12 reasons, his Fifth Amendment and Miranda claim fails. If Plaintiff includes a Fifth 13 Amendment and Miranda claim in any amended complaint, he must correct this 14 deficiency or risk dismissal of this claim. [15] 16 3. The FAC Fails to State an Eighth Amendment Claim for 17 Plaintiff’s Conditions of Confinement. 18 The FAC claims that Defendants Lloyd and Smith kept Plaintiff in extended 19 isolation for 100 days, during which time Defendant Smith did not let Plaintiff out 20 for exercise or a shower. (FAC 7–8.) As a result, Plaintiff suffered from a fungal 21 rash and emotional distress. (Id. at 8.) The FAC also alleges that Defendant Ruiz 22 made multiple threats of rape and genital mutilation to Plaintiff and denied him 23 clothing and hygiene products. (Id. at 5.) 24 The treatment a prisoner receives in prison and the conditions under which a 25 prisoner is confined are subject to scrutiny under the Eighth Amendment, which 26 prohibits cruel and unusual punishment. See Farmer v. Brennan, 511 U.S. 825 , 832 27 (1994). “[W]hile conditions of confinement may be, and often are, restrictive and 28 harsh, they ‘must not involve the wanton and unnecessary infliction of pain.’” 1 Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (quoting Rhodes v. 2 Chapman, 452 U.S. 337, 347 (1981)). “In other words, they must not be devoid of 3 legitimate penological purpose, or contrary to ‘evolving standards of decency that 4 mark the progress of a maturing society.’” Morgensen, 465 F.3d at 1045 (citation 5 omitted) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). “An institution’s 6 obligation under the eighth amendment is at an end if it furnishes sentenced 7 prisoners with adequate food, clothing, shelter, sanitation, medical care, and 8 personal safety.” Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (quoting 9 Wright v. Rushen, 642 F.2d 1129 , 1132–33 (9th Cir. 1981)). 10 A prison official violates the Eighth Amendment when two requirements are 11 met: (1) “the deprivation alleged must be, objectively, ‘sufficiently serious,’; a 12 prison official’s act or omission must result in the denial of ‘the minimal civilized 13 measure of life’s necessities’”; and (2) subjectively, the prison official acted with 14 “deliberate indifference” to an inmate’s health or safety—that is, “the official knows 15 of and disregards an excessive risk to inmate health or safety; the official must both 16 be aware of facts from which the inference could be drawn that a substantial risk of 17 serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 834 , 18 837 (citations omitted). [19] 20 Objective Prong. The FAC contains sufficient allegations to satisfy the 21 Eighth Amendment’s objective prong with respect to Defendants Lloyd and Smith. 22 Administrative segregation does not violate the Eighth Amendment’s prohibition 23 against cruel and unusual punishment. See Anderson v. County of Kern, 45 F.3d 24 1310 , 1315–16 (9th Cir. 1995). However, the FAC alleges that Defendants Lloyd 25 and Smith kept Plaintiff in extended isolation for 100 days, during which time 26 Plaintiff was not permitted outdoor exercise or showers. (FAC 7–8.) These 27 allegations can constitute a sufficiently serious deprivation. See Lopez v. Smith, [28] 203 F.3d 1122, 1133 (9th Cir. 2000) (holding that deprivation of outdoor exercise 1 for six-and-one-half weeks satisfied the objective element of an Eighth Amendment 2 claim); see also Ekene v. Cash, No. CV11-9318-DDP (DTB), 2013 U.S. Dist. 3 LEXIS 81952 , at *20–21 (C.D. Cal. Jan. 8, 2013) (concluding that plaintiff 4 sufficiently stated an Eighth Amendment claim against defendant correctional 5 officer based on deprivation of showers and outdoor yard for three months). 6 The FAC does not contain sufficient allegations to satisfy the objective prong 7 as to Defendant Ruiz. The FAC alleges that Defendant Ruiz made multiple threats 8 of rape and genital mutilation to Plaintiff and denied him clothing and hygiene 9 products. (FAC 5.) As the Court previously explained to Plaintiff, Plaintiff does not 10 allege sufficient allegations to allow the Court to conclude that the deprivations of 11 clothing and hygiene products were objectively sufficiently serious. See Johnson v. 12 Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (“The circumstances, nature, and duration 13 of a deprivation of these necessities must be considered in determining whether a 14 constitutional violation has occurred. The more basic the need, the shorter the time it 15 can be withheld.”) (quotations omitted). (Order Dismiss Compl. 9–10.) The Court 16 also previously explained to Plaintiff that the Eighth Amendment does not protect 17 verbal sexual harassment that does not involve physical contact. (Id. at 10.) The 18 Court will give Plaintiff one more opportunity to correct the deficiencies with 19 respect to Defendant Ruiz before recommending dismissal of the claims against him. [20] 21 Subjective Prong. Even though the FAC meets the objective prong for 22 Defendants Lloyd and Smith, the FAC fails the subjective prong because it contains 23 no allegations to support the inference that either Defendant Lloyd or Smith acted 24 with “deliberate indifference” to Plaintiff’s health or safety. It cannot reasonably be 25 inferred from the allegations in the FAC that either Defendant Lopez or Smith knew 26 of, and disregarded, an excessive risk to Plaintiff’s health or safety as a result of his 27 prolonged lack of outdoor exercise or showers. See Farmer, 511 U.S. at 837 . The 28 Court previously explained this deficiency to Plaintiff. (See Order Dismiss Compl. 1 10–11.) The Court will give Plaintiff one more opportunity to state an Eighth 2 Amendment claim before recommending that it be dismissed. [3] 4 4. The FAC Fails to State a Conspiracy Claim. 5 The FAC does not explicitly assert a separate claim for conspiracy. However, 6 the FAC alleges that Defendants, in conjunction with unknown members of law 7 enforcement, conspired to torture Plaintiff for almost two years in an effort to obtain 8 a confession. (FAC 7.) In light of this allegation, the Court analyzes whether the 9 FAC states a Section 1983 conspiracy claim, and concludes that it does not. 10 A conspiracy claim involving Section 1983 requires allegations supporting 11 “an agreement or ‘meeting of the minds’ to violate constitutional rights.” Franklin 12 v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (quoting United Steelworkers of Am. v. 13 Phelps Dodge Corp., 865 F.2d 1539 , 1540–41 (9th Cir. 1989)). “To be liable, each 14 participant in the conspiracy need not know the exact details of the plan, but each 15 participant must at least share the common objective of the conspiracy.” Franklin, [16] 312 F.3d at 441 (quoting United Steelworkers of Am., 865 F.2d at 1541 ). This 17 agreement or meeting of the minds may be inferred on the basis of circumstantial 18 evidence, such as the actions of the defendants. Mendocino Envtl. Ctr. v. Mendocino 19 County, 192 F.3d 1283 , 1301 (9th Cir. 1999). A showing that defendants committed 20 acts that “are unlikely to have been undertaken without an agreement” may support 21 the inference of conspiracy. Id. (quoting Kunik v. Racine County, 946 F.2d 1574 , 22 1580 (7th Cir. 1991)). Conclusory allegations of conspiracy to violate 23 Constitutional rights are insufficient to state a Section 1983 claim. See Burns v. 24 County of King, 883 F.2d 819, 821 (9th Cir. 1989). In addition, a conspiracy to 25 violate constitutional rights must be predicated on a viable underlying constitutional 26 claim. See Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005). A 27 conspiracy claim requires “an actual deprivation of . . . constitutional rights.” Hart v. 28 Parks, 450 F.3d 1059, 1071 (9th Cir. 2006). 1 The FAC does not state a conspiracy claim for two reasons. First, as 2 explained above, the FAC does not adequately state any deprivation of constitutional 3 rights. See Woodrum v. Woodward County, 866 F.2d 1121 , 1126–27 (9th Cir. 1989) 4 (explaining that Section 1983 applies only to conspiracy claims that result in a 5 deprivation of constitutional rights). Specifically, the FAC does not state a claim for 6 violation of the Fifth Amendment and Miranda, or the First or Eighth Amendments. 7 (See supra § IV.C.1–3.) Second, the FAC does not allege specific facts of an 8 agreement or meeting of the minds to violate Plaintiff’s constitutional rights. 9 Without any supporting facts, the FAC simply alleges that Defendants conspired to 10 torture Plaintiff for almost two years in an effort to obtain a confession. (FAC 7.) 11 “To state a claim for a conspiracy to violate one’s constitutional rights under section 12 1983, the plaintiff must state specific facts to support the existence of the claimed 13 conspiracy.” Burns, 883 F.2d at 821 . 14 For these reasons, Plaintiff’s Section 1983 conspiracy claim fails. If Plaintiff 15 alleges a conspiracy in any amended complaint, Plaintiff must correct these 16 deficiencies or risk dismissal of such claim. [17] 18 D. The FAC Fails to State a Medical Malpractice Claim. 19 Although the FAC does not explicitly assert any state law claims, the FAC 20 alleges that Defendant Rothberg performed medical malpractice by misdiagnosing 21 Plaintiff. (FAC 7.) The Court therefore analyzes whether the FAC pleads a state 22 law tort claim for medical malpractice, and concludes that it does not. 23 Before commencing a lawsuit against a California state or local public entity 24 or its employee based on tort liability or for any claim for money or damages, the 25 Government Claims Act requires a plaintiff to first present a written claim to the 26 public entity. See Gong v. City of Rosemead, 226 Cal. App. 4th 363, 374 (2014); see 27 also City of Stockton v. Superior Court, 42 Cal. 4th 730, 738 (2007). Claims for 28 personal injury and property damages must be presented within six months after 1 accrual; all other claims must be presented within one year. City of Stockton, 42 Cal. 2 4th at 738. A plaintiff cannot file a lawsuit until the written claim has been acted 3 upon, or deemed rejected, by the board of the public entity. State of California v. 4 Superior Court (Bodde), 32 Cal. 4th 1234, 1239 (2004). “[S]ubmission of a claim to 5 a public entity pursuant to [the Government Claims Act] ‘is a condition precedent to 6 a tort action and the failure to present the claim bars the action.’” Id. at 1240 7 (quoting Phillips v. Desert Hosp. Dist., 49 Cal. 3d 699, 708 (1989)); see also Karim8 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988) (holding that 9 plaintiff’s pendent state law tort claims against both the individual and public entity 10 defendants are barred unless he presented them in compliance with Government 11 Claims Act before filing suit). “A cause of action that is subject to the statutory 12 claim procedure must allege either that the plaintiff complied with the claims 13 presentation requirement, or that a recognized exception or excuse for 14 noncompliance exists.” Gong, 226 Cal. App. 4th at 374 ; see also Bodde, 32 Cal. 4th 15 at 1243 (“[A] plaintiff must allege facts demonstrating or excusing compliance with 16 the claim presentation requirement. Otherwise, his complaint is subject to a general 17 demurrer for failure to state facts sufficient to constitute a cause of action.”). 18 The FAC does not allege that Plaintiff presented a medical malpractice claim 19 in compliance with the Government Claims Act, or that he was excused from the 20 claim presentation requirement. Thus, the FAC does not sufficiently plead a medical 21 malpractice claim. If Plaintiff includes a medical malpractice claim in any amended 22 complaint, he must state facts showing that he presented or was excused from 23 presenting his claim in accordance with the Government Claims Act, or face 24 dismissal of such claim. [25] 26 V. CONCLUSION 27 For the reasons stated above, the Court DISMISSES the FAC WITH 28 LEAVE TO AMEND. Although doubtful that Plaintiff could amend the FAC to 1 overcome the deficiencies explained in this order, Plaintiff may have an opportunity 2 to amend and cure the deficiencies given his pro se prisoner status. Plaintiff is 3 ORDERED to, within thirty days after the date of this Order, either: (1) file a SAC, 4 or (2) advise the Court that Plaintiff does not intend to file a SAC. 5 The SAC must cure the pleading defects discussed above and shall be 6 complete in itself without reference to the FAC. See L.R. 15-2 (“Every amended 7 pleading filed as a matter of right or allowed by order of the Court shall be complete 8 including exhibits. The amended pleading shall not refer to the prior, superseding 9 pleading.”). This means that Plaintiff must allege and plead any viable claims in the 10 SAC again. Plaintiff shall not include new defendants or new allegations that are not 11 reasonably related to the claims asserted in the FAC. 12 In any amended complaint, Plaintiff should confine his allegations to those 13 operative facts supporting each of his claims. Plaintiff is advised that pursuant to 14 Rule 8, all that is required is a “short and plain statement of the claim showing that 15 the pleader is entitled to relief.” Plaintiff strongly is encouraged to utilize the 16 standard civil rights complaint form when filing any amended complaint, a 17 copy of which is attached. In any amended complaint, Plaintiff should identify the 18 nature of each separate legal claim and make clear what specific factual allegations 19 support each of his separate claims. Plaintiff strongly is encouraged to keep his 20 statements concise and to omit irrelevant details. It is not necessary for Plaintiff to 21 cite case law, include legal argument, or attach exhibits at this stage of the litigation. 22 Plaintiff also is advised to omit any claims for which he lacks a sufficient factual 23 basis. 24 The Court explicitly cautions Plaintiff that failure to timely file a SAC, or 25 timely advise the Court that Plaintiff does not intend to file a SAC, will result in 26 a recommendation that this action be dismissed for failure to prosecute and/or 27 failure to comply with court orders pursuant to Federal Rule of Civil Procedure 28 41(b). 1 Plaintiff is not required to file an amended complaint, especially since a 2 || complaint dismissed for failure to state a claim without leave to amend may count 3 || as a strike under 28 U.S.C. § 1915 (g). Instead, Plaintiff may request voluntary 4 || dismissal of the action pursuant to Federal Rule of Civil Procedure 41(a) using the 5 || attached Notice of Voluntary Dismissal form. 6 Plaintiff is advised that this Court’s determination herein that the allegations 7 || in the FAC are insufficient to state a particular claim should not be seen as 8 || dispositive of the claim. Accordingly, although the undersigned Magistrate Judge 9 || believes Plaintiff has failed to plead sufficient factual matter in the pleading, 10 || accepted as true, to state a claim for relief that is plausible on its face, Plaintiff is not 11 || required to omit any claim or Defendant in order to pursue this action. However, if 12 || Plaintiff decides to pursue a claim in an amended complaint that the undersigned 13 || previously found to be insufficient, then, pursuant to 28 U.S.C. § 636 , the 14 || undersigned ultimately may submit to the assigned District Judge a 15 || recommendation that such claim may be dismissed with prejudice for failure to 16 || state a claim, subject to Plaintiff's right at that time to file objections. See Fed. R. 17 || Civ. P. 72(b); C.D. Cal. L.R. 72-3. [18] 19 IT IS SO ORDERED. 21 || DATED: December 9, 2019 MARIA A. AUDERO 33 UNITED STATES MAGISTRATE JUDGE