UNITED STATES DISTRICT COUR

CENTRAL DISTRICT OF CALIF a APRIL 24 2020

INMATE # BL3279 CASE NUMBE SS

CENTRAL DISTRICT OF CALIFORNIA

WILLIAM JAMES MATTHEW WALLACE, II, 00028 FMO (GIS) pepury

PLAINTIFF(S)

v.

ORDER RE REQUEST TO PROCEED WITHOUT

LOS ANGELES SHERIFF ALEX VILLANUEVA, et al., PREPAYMENT OF FILING FEES

DEFENDANT(S) JS-6

IT IS ORDERED that the Request to Proceed Without Prepayment of Filing Fees is hereby GRANTED. IT IS FURTHER ORDERED that, in accordance with 28 U.S.C. § 1915, the prisoner-plaintiff owes the Court the total filing fee of $350.00. An initial partial filing fee of $ must be paid within thirty (30) days of the date this order is filed. Failure to remit the initial partial filing fee may result in dismissal of the case. Thereafter, monthly payments shall be forwarded to the Court in accordance with 28 U.S.C. § 1915(b)(2).

Date United States Magistrate Judge IT Is RECOMMENDED that the Request to Proceed Without Prepayment of Filing Fees be DENIED for the following reason(s): Inadequate showing of indigency. & Frivolous, malicious, or fails to state a claim L] Failure to authorize disbursements from upon which relief may be granted. prison trust account to pay the filing fees. (J Seeks monetary relief from a defendant immune Failure to provide certified copy of trust fund from such relief. statement for the last six (6) months. & Leave to amend would be futile. District Court lacks jurisdiction. This denial may constitute a strike under the Other “Three Strikes” provision governing the filing of — prisoner suits. See O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Comments: See Attachment Wpa April 22, 2020 Date United States Magistrate Judge IT IS ORDERED that the Request to Proceed Without Prepayment of Filing Fees is: CL) GRANTED. IT IS FURTHER ORDERED that, in accordance with 28 U.S.C. § 1915, the prisoner-plaintiff owes the Court the total filing fee of $350.00. An initial partial filing fee of $ must be paid within thirty (30) days of the date this order is filed. Failure to remit the initial partial filing fee may result in dismissal of the case. Thereafter, monthly payments shall be forwarded to the Court in accordance with 28 U.S.C. § 1915(b)(2). [] DENIED. Plaintiff SHALL PAY THE FILING FEES IN FULL within 30 days or this case will be dismissed. DENIED, and this case is hereby DISMISSED immediately. DENIED, with leave to amend within 30 days. Plaintiff may re-submit the IFP application and Complaint to this Court if submitted with the Certified Trust Account Statement and Disbursement Authorization. Plaintiff shall utilize the same case number, If plaintiff fails to submit the required documents within 30 days, this case shall be DISMISSED. April 24, 2020 /s/ Fernando M. Olguin Date United States District Judge

I 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 1 WILLIAM JAMES MATTHEW Case No. 2:19-cv-06128-FMO (GJS)

WALLACE, II,

12 al ATTACHMENT TO Plaintiff RECOMMENDATION ON 14 FILING FEES

LOS ANGELES SHERIFF ALEX

15 VILLANUEVA, et al., 16 Defendants. 17 On July 16, 2019, Plaintiff filed a complaint under 42 U.S.C. § 1983 against 18 || three Defendants: Alex Villanueva, the Sheriff of the Los Angeles County □□□□□□□□□ 19 || Department (LASD) (“Sheriff Villanueva’); the County of Los Angeles (“County”); 20 |} and the City of Los Angeles (“City”). [Dkt. 1, “Complaint.”] The Complaint 21 || stemmed from various events and circumstances that took place and/or existed at the 22 || LASD’s Twin Towers Correctional Facility (“TTCF’’) between April 28, 2019, and 23 |} June 7, 2019, while Plaintiff was incarcerated there. Plaintiff sought leave to 24 || proceed without prepayment of the filing fee. As a result, under 28 U.S.C. § 1915A 25 |} and 42 U.S.C. § 1997e(c)(1), the Court was required to screen the Complaint to 26 || determine whether it must be dismissed as frivolous, malicious, failing to state a 27 || claim upon which relief may be granted, or seeking relief against a defendant who is 28 || immune from suit.

l When screening was completed, on September 6, 2019, United States District 2 || Judge Fernando M. Olguin denied Plaintiff's request to proceed without prepayment 3 || of the filing fee [Dkt. 8, “September 6 Order”]. The September 6 Order found that 4 || the Complaint: failed to state any cognizable claim against Sheriff Villanueva, as it 5 || contained only conclusory allegations seeking to impose respondeat superior 6 || liability; improperly sued the City for matters alleged to have taken place at a 7 || County entity; and failed to state any cognizable basis for holding the County liable 8 || consistently with Monell v. Dep’t of Social Services, 436 U.S. 658, 693-95 (1978). 9 || The September 6 Order also noted that Plaintiff had failed to submit the certified 10 || copy of Plaintiff's trust fund statement for the last six months required by 28 U.S.C. 11 |} § 1915(a)(2). The September 6 Order granted Plaintiff leave to file a First Amended 12 || Complaint that corrected the identified defects and cautioned him that the First 13 || Amended Complaint must be complete in itself. 14 On October 11, 2019, Plaintiff filed his First Amended Complaint, which 15 |) added a large number of individual Defendants [Dkt. 19, “FAC”]. On November 4, 16 || 2019, Plaintiff submitted an uncertified copy of his inmate trust account statement 17 || covering the period from April 1, 2019, through October 17, 2019 [Dkt. 22]. As 18 || before, screening of the FAC was required by 28 U.S.C. § 1915A and 42 U.S.C. § 19 |) 1997e(c)(1). On December 10, 2019, District Judge Olguin again denied leave to 20 |} proceed without prepayment of the filing fee, although he granted Plaintiff one final 21 || chance to amend. [Dkt. 24, “December 10 Order.”] The December 10 Order found, 22 || inter alia, that the FAC: was substantially defective procedurally and, as a result, 23 || did not state any claim against the Defendants; continued to fail to state a cognizable 24 || claim against Sheriff Villanueva; again improperly sought to hold the City liable for 25 |} matters that occurred at a County entity, despite Petitioner having been warned that 26 |} he could not do so; and again failed to state any cognizable claim against the County 27 || or any cognizable official capacity claims. The December 10 Order directed that in 28 || any SAC filed: Plaintiff could not re-name Sheriff Villanueva, the City, or the

1 || County as Defendants; and the only permissible claims that could be included were 2 || the individual capacity claims against the individuals named as Defendants 3-12 in 3 |} the FAC. The December 10 Order further cautioned Plaintiff that if the Second 4 || Amended Complaint did not comply with the December 10 Order, it might be 5 || rejected and/or the case could be dismissed under Fed. R. Civ. P. 41(b). 6 On December 30, 2019, Plaintiff filed his Second Amended Complaint. [Dkt. 7 || 29, “SAC.”] The SAC alleges four Claims against 15 Defendants.' For the reasons 8 || set forth below, the Court recommends that leave to proceed without prepayment of 9 || the filing fee be denied, without leave to amend, and that this action be dismissed. 10 11 GOVERNING STANDARD 12 In screening a pro se civil rights complaint, the Court must construe its 13 || allegations liberally and must afford the plaintiff the benefit of any doubt. Wilhelm 14 || v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). The standard applicable on 15 |) screening is the standard for failure to state a claim under Rule 12(b)(6) of the 16 |) Federal Rules of Civil Procedure. Jd. 17 The complaint need not contain detailed factual allegations, but must contain 18 || sufficient factual matter to state a claim for relief that is plausible on its face. 19 || Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 20 |} U.S. 544, 570 (2007). “A claim has factual plausibility when the plaintiff pleads 21 || factual content that allows the court to draw the reasonable inference that the 22 || defendant is liable for the misconduct alleged.” Jgbal, 556 U.S. at 678. A 23 || complaint does not meet the pleading standard if it contains merely “‘labels and 24 || conclusions’” or ““‘a formulaic recitation of the elements of a cause of action’” or 25 |} “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” /d. at 678 (quoting 26 || Twombly, 550 U.S. at 555, 557). 2F 28 | Sixteen Defendants are listed but one of them (Deputy Hinton) is named twice.

1 The Supreme Court has described a two-pronged approach for reviewing a 2 || possible failure to state a claim. /gbal, 556 U.S. at 679; see also Moss v. U.S. Secret 3 |} Service, 572 F. 3d 962, 970-71 (9th Cir. 2009). First, the Court may decline to give 4 || the presumption of truth to any legal conclusions couched as factual allegations or 5 || mere conclusory statements asserted in support of “[t]hreadbare recitals of the 6 || elements of a cause of action.” /gbal, 556 U.S. at 678-79. Legal conclusions “‘must 7 || be supported by factual allegations.” Jd. at 679. Second, the Court presumes the 8 || truth of any remaining “well-pleaded factual allegations,” and determines whether 9 || these factual allegations and reasonable inferences from them plausibly support a 10 || claim for relief. Jd.; see also Moss, 572 F.3d at 970-71. 11 If a complaint is to be dismissed, “[u]nder Ninth Circuit case law, district 12 || courts are only required to grant leave to amend if a complaint can possibly be 13 || saved. Courts are not required to grant leave to amend if a complaint lacks merit 14 || entirely.” Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000). Leave to amend is 15 || not appropriate, even given the liberal pleading standard for pro se litigants, when 16 || “the pleading ‘could not possibly be cured by the allegation of other facts.’” 17 || Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (internal quotation omitted). 18 19 DISCUSSION 20 I. The SAC Violates The December 10 Order. 21 As noted above, the December 10 Order expressly directed that certain parties 22 || and claims could not be renamed and realleged in the SAC, and further directed that 23 || no additional defendants could be added. The December 10 Order cautioned 24 || Plaintiff that noncompliance could result in the dismissal of this action. In addition, the December 10 Order directed Plaintiff to comply with Rule 8 26 |} and 10 of the Federal Rules of Civil Procedure in any SAC he might file, given the 27 || FAC’s egregious failure to do so. The December 10 Order directed: 28 Rule 10 of the Federal Rules of Civil Procedure

requires: a complaint to set forth the plaintiff's claims “in numbered paragraphs, each limited as far as 4 practicable to a single set of circumstances; and that “each claim founded on a separate transaction or 3 occurrence . . . must be stated in a separate count.” Pursuant to Rule 8(a) of the Federal Rules of Civil 4 Procedure, a complaint must contain “a short and plain 5 statement of the claim showing that the pleader is entitled to relief’ and “a demand for the relief sought.” Further, 6 Rule 8(d)(1) requires that each allegation be “simple, concise, and direct.”

g ant we 9 If Plaintiff wishes to proceed in this case, he must file a Second Amended Complaint that sets forth the 10 following under separate headings for each claim: (1) Plaintiff's legal theory (for example, a claim for violation I] of the Eight Amendment’s prohibition on cruel and 12 unusual punishment); (2) together in one paragraph, the Defendants against whom the particular claim is brought; 13 and (3) the factual allegations—Defendant by Defendant—that support the particular claim against each 14 particular Defendant. To the extent possible, claims 15 arising out of separate incidents should be contained in separately-labelled claims. Fed. R. Civ. P. 10(b). If 16 Plaintiff believes that an exhibit supports his factual allegations, he may attach it to the Second Amended 17 Complaint and cross-reference it, but the mere attaching of any such document cannot serve as a replacement for 18 the required factual allegations stating a claim for relief 19 that is plausible on its face. In addition, any Second Amended Complaint filed by Plaintiff must contain a 20 prayer for relief in compliance with Fed. R. Civ. P. 8(a)(3). 21 22 Plaintiff has failed to heed the above-quoted December 10 Order. The four 23 || Claims alleged in the SAC lack numbered paragraphs and are rambling and lengthy. 24 || The SAC fails entirely to indicate against whom each Claim is brought, leaving the 25 || Court to have to guess which Defendants are being sued under which Claim and 26 |} under which theory(ies) of liability. In addition, in direct violation of the December 10 Order, the SAC again 28 || names Sheriff Villanueva and the County as Defendants, even though Plaintiff was

1 || clearly told he could not do so. In direct violation of the December 10 Order and 2 || Rule 15(a)(2) of the Federal Rules of Civil Procedure, the SAC adds four new 3 || Defendants and a new claim, even though, again, Plaintiff was told not to do so. 4 || The SAC repleads official capacity claims against seven previous defendants, as 5 || well as against three of the improperly-named new Defendants, once again, in direct 6 || disregard of the December 10 Order. 7 Plaintiff was warned that violating the December 10 Order could result in the 8 || dismissal. While Plaintiff's violation of the December 10 Order is not the sole 9 || reason for this Court’s recommendation that leave to proceed without prepayment 10 || be denied, it is an additional factor warranting dismissal of this case. 11 Given the express terms of District Judge Olguin’s December 10 Order, 12 || Plaintiff's violation of that Order, and his failure to obtain leave under Rule 15(a)(2) 13 || to add new Defendants, the Court will not consider the allegations directed to, and 14 || claims apparently made against, the following Defendants: Sheriff Villanueva, the 15 || County,” Deputy Hinton, Sergeant Brackus, and LC/MC USC Hospital (unknown) 16 || Los Angeles; and the official capacity claims brought against Deputy Brice, Deputy 17 || Ruiz, Deputy Smilor, Sergeant Webb, Sergeant Marquez, Deputy Boling, and 18 || Deputy Franks. The Court now will consider each of the four Claims alleged with 19 || respect to the remaining Defendants, although as noted above, its ability to do so is 20 |} hampered by the SAC’s failings, including Plaintiff's failure to identify which 21 || Defendants are being sued in connection with which Claim(s).

23 24 || 2 The Court notes that, with respect to the County and Sheriff Villanueva, the SAC 25 continues to suffer from the same inherent defects that existed in the original and First Amended Complaints and which led to the December 10 Order’s bar on re-naming them as Defendants. 26 || Plaintiff continues to seek to hold Sheriff Villanueva liable based solely on inadequate respondeat superior allegations and continues to fail to allege a viable basis for Monel/ liability on the part of 27 the County. Given Plaintiff's inability to correct these fundamental defects, the Court must 28 assume he cannot do so, and thus, leave to amend to given him a fourth shot against these two Defendants would be inappropriate.

1 |} Claim] 2 Claim I is labeled “ADA Process” at the outset and is based on: a shower that 3 || is alleged not to comply with the ADA, because it lacks a barrier to adequately 4 || prevent water from going onto the floor; the failure to conduct routine maintenance 5 || on Plaintiff's wheelchair; and the removal of the laces on Plaintiff's Nike brand 6 || “orthopedic shoes” and then the removal of the shoes themselves. Claim I also 7 || appears to plead a second and separate Section 1983/Eighth Amendment claim 8 || premised on allegations that, on two occasions, Plaintiff was not allowed to join in 9 || the pill line, because he was not wearing pants (and instead had a blanket on his 10 || lap), and thereby was deprived of unspecified medication.’ Both claims alleged 11 || within Claim I suffer from defects. 12 13 A. ADA Claim 14 With respect to the ADA claim, Plaintiff did not seek leave under Rule 15 || 15(a)(2) to add a new claim raising ADA issues. But regardless of that defect, this 16 || claim is not cognizable for several reasons. As a threshold matter, the ADA claim is 17 || brought only against individuals in their individual capacities. It is unclear whether 18 || Plaintiff purports to bring his claim directly under Title II of the ADA‘ or as a 19 |) Section 1983 claim to vindicate rights created by the ADA. If the latter, the claim is 20 |} not cognizable, because a plaintiff may not sue a state official under Section 1983 21 || for violations of the ADA. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) 22 || (holding that Title II’s remedial scheme is the exclusive means by which a plaintiff 23 24 || 3 The SAC also includes several pages of rambling allegations at the end of Claim I about 25 events that took place at a different facility (the Men’s Central Jail, or “MCJ”) after Plaintiff was transferred there on November 2, 2019. The SAC, however, does not include any Defendant(s) to 26 || whom these allegations can be construed to relate. Accordingly, they do not state any basis for 47 relief and will not be considered further.

28 os Gd es, applies to inmates within state prisons. Pa. Dep’t of Corr. v. Yeskey,

1 || can vindicate his Title If ADA rights). 2 To the extent that Claim I is brought directly under the ADA, the only proper 3 || defendant is the correctional institution or an individual officer of that institution in 4 || his or her official capacity. Vinson, 288 F.3d at 1156; see also Stewart v. Unknown 5 || Parties, 483 Fed. Appx. 374, 374 (9th Cir. 2012); Garcia v. S.U.N.Y. Health Scis. 6 || Cir. Of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001). Thus, Plaintiff's individual 7 || capacity claims against the Defendants are not cognizable for purposes of the ADA. 8 || As noted earlier, the December 10 Order barred Plaintiff from including the County 9 || (under whom TTCF is operated) as a Defendant in the SAC and from pleading 10 || official capacity claims against the individual Defendants in the SAC. At the time 11 || of the December 10 Order, Plaintiff had not raised an ADA claim. Having reviewed 12 |) the SAC carefully, the Court is persuaded that revisiting that Order for purposes of 13 || allowing Plaintiff to allege a new ADA official capacity claim against the County 14 || and one or more of the individual Defendants is not warranted for the following 15 || reasons. 16 First, in February 2020, and again in March 2020, Plaintiff was transferred 17 || from a County institution to State of California correctional institutions and, thus, no 18 || longer is at TTCF or MCJ. He does not allege any reason to believe he will be 19 |) returned to either County institution and subjected to the conditions he claims 20 |} violated the ADA. [Dkt. 33, 39.] Asa result, any injunctive relief he seeks pursuant 21 |} to his ADA claim, as well as pursuant to all of his Section 1983 claims, has been 22 || mooted. Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Alexander v. Nevada 23 || Dep’t of Corrections, No. 3:15-cv-00213-MMD-VPC, 2017 WL 1084519, at *2 (D. 24 |} Nev. March 22, 2017) (prisoner’s transfer to another correctional institution meant 25 || that “his standing for injunctive relief has vanished and his [ADA] claim is moot’); 26 || Tabb v. Quinn, No. C06-5111 RBL/KLS, 2007 WL 1430104, at *8 (W.D. Wa. May 27 || 11, 2007) (prisoner’s release from prison rendered his ADA claims for injunctive 28 || relief moot).

1 Second, while it is unclear that Plaintiff actually seeks damages in connection 2 || with his ADA claim, he has not alleged any basis for the same. For the purposes of 3 |} an ADA claim for monetary damages, a plaintiff must allege facts sufficient to 4 || indicate intentional discrimination. See 7.B. ex rel. Brenneise v. San Diego Unified 5 || School Dist., 806 F.3d 451, 467 (9th Cir. 2015). In the Ninth Circuit, the test for 6 || intentional discrimination is a deliberate indifference standard, requiring “both 7 || knowledge that a harm to a federally protected right is substantially likely, and a 8 || failure to act upon that likelihood.” Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1138- 9 |) 39 (9th Cir. 2001) (citation omitted); see also Lovell v. Chandler, 303 F.3d 1039, 10 || 1056 (9th Cir. 2002) (“compensatory damages are not available under Title II ... 11 || absent a showing of discriminatory intent”). 12 Plaintiff's ADA claim is based on (1) an allegedly noncompliant shower, (2) 13 || the failure to conduct routine maintenance on his wheelchair, and (3) the removal of 14 || the laces on Plaintiff's Nike brand “orthopedic shoes” and then the removal of the 15 || shoes themselves As to (1) and (2), nothing in the SAC, even if proven, could 16 || establish deliberate indifference. With respect to (1), Plaintiff alleges that Deputy 17 || Franks had attempted to mitigate any water leakage issues by providing materials to 18 |) be used as a barrier and that, subsequently, Deputies Boling and Merino measured 19 |) the shower and Boling said that he would have a wall fabricated to prevent water 20 || from spilling out as well as install an additional shower rail. Under these 21 || circumstances, no deliberate indifference could be found. With respect to (2), 22 || Plaintiff does not allege that his wheelchair was non-operable in any respect or was 23 |} on the verge of the same, only that he was told by Deputy Boling that TTCF would 24 || not perform routine maintenance in response to his demand. Plaintiff was at TTCF 25 || temporarily and was headed to a State prison, and he does not allege that he would 26 || have been unable to obtain such routine maintenance once there, if it were to 27 || become needed. Again, deliberate indifference could not be found under these 28 || circumstances, as no harm to a federally protected right was apparent.

1 As to (3), the shoe issue, Plaintiff alleges, in essence, a denial of proper 2 || medical care and treatment, contending that his Nike shoes were medically 3 || necessary and, thus, depriving him of them violated the ADA. Such a claim, 4 || however, is not cognizable under the ADA. See Simmons v. Navajo County, 609 5 || F.3d 1011, 1022 (9th Cir. 2010) (“The ADA prohibits discrimination because of 6 || disability, not inadequate treatment for disability.”), overruled in part on a different 7 || ground by Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en 8 || banc); see also Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.1996) (“the Act would 9 || not be violated by a prison’s simply failing to attend to the medical needs of its 10 || disabled prisoners. . .. The ADA does not create a remedy for medical 11 |) malpractice.”). Even when a prisoner alleges that he was discriminatorily denied 12 |) medical treatment because of his disability, this is not cognizable under the ADA, 13 || because “he only needed the treatment because he was disabled,” and thus, his 14 |] disability is “inextricably linked” to the condition to be treated and he does not 15 || satisfy the “otherwise qualified” requirement for stating an ADA claim. O’Guinn v. 16 || Nevada Dep’t of Corrections, 468 Fed. Appx. 651, 653 (9th Cir. 2012) (concluding 17 || that the “key elements of an ADA . . . claim cannot be reconciled with medical 18 |] treatment decisions for the underlying disability”). 19 The SAC alleges that unspecified Defendants — by initially removing the laces 20 |} on his Nike shoes and later taking the shoes away to store with his property — did 21 |} not provide him with proper care for the disability that led a doctor earlier to order 22 || the use of the Nike “orthopedic shoes.” Even if proven, these allegations allege 23 || impaired medical treatment, not discrimination “by reason of” disability, as is 24 || required to state a cognizable ADA claim.° See 42 U.S.C. § 12132; Lovell, 303 F. ao 26 || ° It is significant to note that while Plaintiff waxes on about being deprived of shoes, he also makes clear that he actually is complaining about being deprived of his shoes of choice. [See 27 || Complaint at ECF #659: alleging that Plaintiff was offered black Crocs as a substitute but these |} were “not suitable” in his opinion. ] In short, this was not a total deprivation of medical care but the provision of an alternative that Plaintiff believed was inadequate 10

1 || 3d at 1052; see also Mitchell v. Grounds, No. C 11-03012 EJD (PR), 2012 WL 2 || 4120550, at *3 (N.D. Cal. Sept. 19, 2012) (when plaintiff claimed that due to 3 |} gunshot injury, he needed a lower bunk and that defendants’ denial of a chrono for 4 || the same violated the ADA: “Here, Plaintiff claims that Defendants unlawfully 5 || denied his request for “first/second tier lower bunk housing’ accommodations. In 6 || other words, Plaintiff claims that Defendants are not providing proper care for his 7 || alleged disability. Plaintiff does not allege that Defendants discriminated against 8 || him on the basis of his disability. Accordingly, Plaintiff fails to state a claim under 9 |} the ADA for which relief can be granted.”). As a result, the shoes basis for the 10 || Claim I ADA claim is not cognizable. 11 For the reasons set forth above, the newly-added ADA claim fails to state a 12 || claim upon which relief could be granted. Amendment would not render it 13 || cognizable and, thus, would be futile. 14 15 B. Eighth Amendment Claim 16 “Deliberate indifference to the serious medical needs of an inmate is ‘cruel 17 || and unusual punishment’ under the Eighth Amendment.” Rosati v. Igbinoso, 791 18 || F.3d 1037, 1039 (9th Cir. 2015) (citing Estelle v. Gamble, 429 U.S. 97, 104-06 19 |) (1976)). To state and ultimately establish an Eighth Amendment violation requires 20 || satisfying “both an objective standard — that the deprivation was serious enough to 21 || constitute cruel and unusual punishment — and a subjective standard — deliberate 22 || indifference.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (internal 23 || citation omitted). 24 A serious medical need “exists if failure to treat the injury or condition ‘could 25 |} result in further significant injury’ or cause ‘the unnecessary and wanton infliction 26 || of pain.’” Colwell, 763 F.3d at 1066 (internal citation omitted). “Indications that a 27 || plaintiff has a serious medical need include ‘[t]he existence of an injury that a 28 || reasonable doctor or patient would find important and worthy of comment or 1]

1 |] treatment; the presence of a medical condition that significantly affects an 2 || individual's daily activities; or the existence of chronic and substantial pain.’” Jd. 3 || (internal citation omitted). 4 A prison official acts with deliberate indifference if he “knows of and 5 || disregards an excessive risk to inmate health,” 7.e., if the official is “aware of facts 6 || from which the inference could be drawn that a substantial risk of serious harm 7 || exists”, and he also “draw[s] the inference.” Peralta v. Dillard, 744 F.3d 1076, 8 |} 1082, 1086 (9th Cir. 2014) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). 9 || The “deliberate indifference” prong requires “(a) a purposeful act or failure to 10 |] respond to a prisoner’s pain or possible medical need, and (b) harm caused by the 11 || indifference.” Lemire v. California Dep’t of Corr. & Rehab., 726 F.3d 1062, 1081 12 || (9th Cir. 2013) (internal citation omitted). 13 Such “[i]ndifference may appear when prison officials deny, delay or 14 || intentionally interfere with medical treatment, or it may be shown in the way in 15 || which prison [officials] provide medical care.” Lemire, 726 F.3d at 1081 (internal 16 || citation omitted). However, “a complaint that a physician has been negligent in 17 || diagnosing or treating a medical condition does not state a valid claim of medical 18 || mistreatment under the Eighth Amendment.” Esve/le, 429 U.S. at 106. “[T]he 19 || indifference to [a prisoner’s] medical needs must be substantial. Mere 20 || ‘indifference,’ ‘negligence,’ or “medical malpractice’ will not support this [claim].” 21 || Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (internal citation 22 || omitted). “Even gross negligence is insufficient[.]” Lemire, 726 F.3d at 1082. That 23 || is because “[e]ven if a prison official should have been aware of the risk, if he “was 24 || not, then [he] has not violated the Eighth Amendment, no matter how severe the 25 || risk.’” Peralta, 744 F.3d at 1086 (internal citation omitted). 26 For purposes of Plaintiff’s Claim I Eighth amendment claim, the SAC alleges 27 || that on two occasions (in September and October 2019), two deputies — who, 28 || significantly, are not Defendants — did not allow Plaintiff to join the pill line, 12

1 || because in violation of jail policy, he was not fully dressed (instead of wearing 2 || pants, he had a blanket over his lap). As a result, Plaintiff did not receive 3 |} unspecified medication on those two occasions. Whatever the propriety (or not) of 4 || those two deputies’ acts, they do not and cannot rise to the level of an Eighth 5 || Amendment violation. Plaintiff does not allege that he suffered any adverse medical 6 || consequences as a result of not receiving access to medication on these two 7 || occasions. Moreover, this happened because Plaintiff was not following jail policy, 8 || and once he was on notice that his noncompliance would prevent him from joining 9 || the pill line, chose to again be noncompliant on the second occasion. Finally, the 10 || two deputies alleged to have violated the Eighth Amendment are not parties to this 11 || case. In short, there is no one to hold liable for this alleged Eighth Amendment 12 || violation even if it had been adequately alleged. Under these circumstances, the 13 || subjective and objective components of an Eighth Amendment claim, as well as the 14 || injury requirement, cannot be satisfied and this aspect of Claim I fails to state a 15 |) claim upon which relief can be granted. 16 17 || I. Claim I 18 Claim II is based on a deprivation of access to courts theory. Plaintiff 19 |) contends that various events have frustrated and impeded his pursuit of nonfrivolous 20 |} claims brought protesting the conditions of his confinement. He complains that: his 21 |} legal mail was delayed while he was at TTCF on many occasions; periodically, he 22 || was required to follow a lights out at midnight policy, was not permitted to work on 23 || his legal matters in a shared space on a 24/7 basis, and was threatened with 24 || discipline if he did not comply; when he was allowed law library access, he was 25 |} required to work with one arm handcuffed to the wall, which rendered use of a 26 || “kiosk” inadequate; on one occasion, the library computers were down all night; and 27 || his pro per status was not maintained on a consistent basis. 28 Prisoners have a constitutional right of access to courts under the First and 13

1 || Fourteenth Amendments.° See Lewis v. Casey, 518 U.S. 343, 346 (1996); Vandelft 2 || v. Moses, 31 F.3d 794, 796 (9th Cir. 1994). The right of access is guaranteed for 3 || direct and collateral attacks upon a conviction or sentence. See Lewis, 518 U.S. at 4 || 354. To state a claim for denial of access to courts, a plaintiff must allege a specific 5 || actual injury involving a non-frivolous direct appeal, habeas corpus proceeding, or 6 || civil rights action. See Lewis, 518 U.S. at 351-352, 353 n. 3, 353-355; see also 7 || Madrid v. Gomez, 190 F.3d 990, 995 (9th Cir. 1999). The right of access to courts 8 || also applies to prison grievance proceedings. Bradley v. Hall, 64 F.3d 1276, 1279 9 |} (9th Cir. 1995). 10 When a prisoner alleges mail interference or other impeding matters, he must 11 |) demonstrate actual injury, which means “actual prejudice,” such as the inability to 12 || meet a filing deadline or to present a non-frivolous claim. Lewis, 518 U.S. at 348- 13 || 49, 352-53 & n.3; Nevada Dept. of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 14 || 2011). Actual injury is a jurisdictional requirement and may not be waived. □□□ 15 || (citing Lewis, 518 U.S. at 349); see also, e.g., Jenkins v. McMickens, 618 F. Supp. 16 || 1472, 1474-75 (S.D.N.Y. 1985) (complaint alleging certain documents pertaining to 17 || pending trial confiscated and not returned too conclusory to support claim of denial 18 || of access to court). 19 Claim II suffers from a fatal flaw that cannot be rectified with amendment, 20 |} namely, the SAC’s failure to allege a viable actual injury. While Plaintiff complains 21 || of events that he believes negatively impacted his ability to engage in almost round- 22 || the-clock legal efforts, he does not allege that he actually was unable to pursue a 23 24 116 Claim I also alludes to the Due Process Clause, but this is not an appropriate basis for 25 Plaintiff's access to courts claim. “Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that 26 || Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing such a claim.” A/bright v. Oliver, 510 U.S. 266, 273 (1994). Claim I properly is raised 27 || under the First Amendment based on the facts alleged; Plaintiff has not properly stated a 28 Fourteenth Amendment due process claim, because any such claim is indistinguishable from the First Amendment right to access the courts claim asserted through Claim II. 14

1 || non-frivolous claim due to these alleged events. At most, at the outset of Claim II, 2 || Plaintiff complains that, due to the delayed receipt of some mail, he missed a single 3 |} court-imposed deadline in an unspecified lawsuit, which put him at risk of having 4 || the suit dismissed. Critically, however, Plaintiff he does not allege that the suit 5 || actually was dismissed or that he actually suffered any adverse consequence in that 6 || pending case. This incident is wholly insufficient to satisfy the actual injury 7 || requirement. Throughout the rest of Claim II, Plaintiff complains only of being 8 || inconvenienced about his desire to work on his legal matters after midnight and 9 || difficult library conditions and a one-time computer glitch, but he does not identify a 10 || single incident in which he suffered an actual injury incident for First Amendment 11 |] purposes as a result of the events he alleges. Indeed, Plaintiff affirmatively pleads 12 || just the opposite, namely, that he frequently (sometimes daily) filed grievances, as 13 || well as a civil rights complaint. 14 The SAC also fails to satisfy the requirement that a plaintiff must allege that 15 || the pleading he was unable to file, due to a defendant’s conduct, would have been 16 || nonfrivolous. Lewis, 518 U.S. at 353. This is required, because a prisoner’s right of 17 || access to the courts does not include the right to present frivolous claims. Jd. at 352 18 |] n.3 (“Depriving someone of an arguable (though not yet established) claim inflicts 19 |) actual injury because it deprives him of something of value. ... Depriving someone 20 || of a frivolous claim, on the other hand, deprives him of nothing at all....”) A 21 || plaintiff must describe the arguments he would have made “well enough to apply 22 || the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of the underlying claim 23 |} is more than hope.” Christopher v. Harbury, 536 U.S. 403, 416 (2002). While 24 || Plaintiff alludes to pursuing a “non-frivolous claim,” he proffers only this bare 25 |} conclusion; he does not identify any claim actually affected by any Defendant’s 26 || conduct and set forth any allegations to show it was non-frivolous. More 27 || importantly, he does not identify any non-frivolous claim he actually was unable to 28 || pursue or was impeded from pursuing. 15

] Claim II fails to state a claim upon which relief can be granted. It suffers 2 || from fatal defects that cannot be rectified with amendment. 3 4 |} IV. Claim Il 5 Claim III alleges that Plaintiff's Eighth Amendment rights were violated, 6 || because he did not receive the provision of adequate “prison services” based on 7 || various matters. In July 2019, in response to one of Plaintiff's grievances, 8 || Defendant Webb contacted him and advised that shoes with laces were not allowed 9 || and that she needed to take his Nike shoes and place them in his stored property 10 || items. Plaintiff complained that the shoes had been ordered by a doctor and were 11 || medically necessary. Webb responded that the ADA did require the jail to make an 12 || exception if an item was physician ordered and advised Plaintiff that, if he provided 13 || her with the relevant doctor order for the shoes, she would return the shoes to him. 14 || Plaintiff alleges that in August 2019, a search was initiated by Defendant Deputy 15 |) Merino, the inmates were sent to the recreational yard, and when Plaintiff returned, 16 || several unidentified items were missing. On September 1, 2019, the ventilation was 17 || not working and it was hot (over 80 degrees), and the water in the drinking fountain 18 || was not cold. Despite Plaintiff's grievances, the water in the drinking fountain 19 || remained hot and the ventilator was not cleaned for some months.’ 20 With respect to the shoe allegations against Defendant Webb, the Court has 21 || noted above the relevant Eighth Amendment standards. The SAC’s allegations, 22 || even if taken as true, cannot establish deliberate indifference on Webb’s part. 23 || Plaintiff describes her as essentially agreeing with him regarding his right to have 24 SSSS—S—S 25 Plaintiff also complains of various events that took place after he moved to MCJ in November 2019. The SAC, however, does not identify a single MCJ-related Defendant who could 26 || be responsible for these matters. Of the 15 named Defendants, only one — newly-added Deputy Hinton — is alleged to have worked at MCJ. However, the allegations of Claim III do not mention, 27 || much less implicate, Defendant Hinton, who is alleged to have worked in the “legal unit.” As a 28 result, these MCJ -related allegations do not state a claim upon which relief can be granted and the Court will not consider them. 16

1 || his Nikes if he could demonstrate that they had been doctor-ordered and agreeing to 2 || return them to him if he provided her with the doctor’s order. Nothing about that 3 |} interaction bespeaks of the type of mindset that could establish deliberate 4 || indifference. 5 With respect to the search initiated by Defendant Merino, Plaintiff fails to 6 || identify the “several items” that were discovered to be missing. Without that, there 7 || cannot be any basis for believing that the Eighth Amendment is implicated based on 8 || this search. In any event, Plaintiff’s allegations in this respect cannot state a viable 9 || Section 1983 claim. When a prisoner alleges he was deprived of property by the 10 |} unauthorized act of a state official, either negligent or intentional, he cannot state a 11 |) constitutional claim where the state provides an adequate post-deprivation remedy. 12 || See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that the unauthorized 13 || negligent or intentional deprivation of property does not violate due process if a 14 || meaningful post-deprivation remedy is available); see also Stewart v. Woodley, 137 15 || Fed. Appx. 938 (9th Cir. 2005) (finding that prison officials’ failure to return 16 || property did not violate due process). The California Tort Claims Act (“CTCA”) 17 || provides an adequate post-deprivation state remedy for the random and unauthorized 18 || taking of property. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994). Thus, 19 |) the SAC’s allegations regarding the August 2019 search cannot state a viable Eighth 20 || Amendment-based Section 1983 claim.® 21 22 WG Plaintiff also alludes to an earlier search in which Deputy Franks required Plaintiff and 23 || others to stand against the wall and be searched, even though some of them had physical A disabilities. Plaintiff alleges that he filed a grievance and subsequently was told that the policy had changed as a result of his grievance, and as a result, that no further similar searches occurred. 25 || These allegations do not state an Eighth Amendment claim, as Claim III rests on the asserted deprivation of “prison services,” not excessive force. But even if the Court liberally construes 26 || Claim III to include a new excessive force claim for which leave had not been sought or granted, these allegations are inadequate to plead a viable claim of this nature, as there is no allegation 27 |! from which it can be inferred that force was used in the search and that it was done “maliciously 28 and sadistically for the very purpose of causing harm.” Whitley v. Albers, 475 U.S. 312, 320-21 (1986). 17

l Finally, it is possible that allegations of excessive heat, a dirty ventilator, and 2 || inadequate drinking water could serve as a basis for an Eighth Amendment-based 3 |} claim if adequate allegations are made. A prisoner may state a Section 1983 claim 4 || under the Eighth Amendment against prison officials if they acted with “deliberate 5 || indifference” to the threat of serious harm or injury to an inmate by physical 6 || conditions at the prison. See Frost v. Agnos, 152 F.3d 1124, 1128-29 (9th Cir. 7 || 1998). The failure of prison officials to protect inmates from dangerous conditions 8 || at the prison violates the Eighth Amendment only when two requirements are met: 9 || (1) the deprivation alleged is objectively, sufficiently serious; and (2) the prison 10 || official is subjectively, deliberately indifferent to inmate safety. Harmer v. Brennan, 11 || 511 US. 825, 834 (1994); Hearns v. Terhune, 413 F.3d 1036, 1040-41 (9th Cir. 12 || 2005). 13 In determining whether a deprivation of a basic necessity 1s sufficiently 14 |] serious to satisfy the objective component of an Eighth Amendment claim, a court 15 |) must consider the circumstances, nature, and duration of the deprivation. See, e.g., 16 || Hearns, 413 F.3d at 1041-42 (allegations of serious health hazards in disciplinary 17 || segregation yard for a period of nine months, including toilets that did not work, 18 || sinks that were rusted and stagnant pools of water infested with insects, and a lack 19 || of cold water even though the temperature in the prison yard exceeded 100 degrees, 20 |} enough to state a claim of unconstitutional prison conditions). With regard to the 21 || subjective component of the analysis, a prison official cannot be held liable under 22 || the Eighth Amendment for denying an inmate humane conditions of confinement 23 |} unless the official knows of and disregards an excessive risk to inmate health or 24 || safety. See Farmer, 511 U.S. at 837. The official must both be aware of facts from 25 || which the inference could be drawn that a substantial risk of serious harm exists, 26 || and he must also draw the inference. /d. Plaintiffs allegations in this respect are cursory at best. He alleges that on 28 || one particular day in September 2019, it was over 80 degrees, the ventilation was 18

1 || not working, and inmates did not have access to cold drinking water. He alludes 2 || vaguely to having filed numerous grievances and that the drinking fountain water 3 || nonetheless remained hot and the ventilator remained uncleaned despite assurances 4 || from the “LASD” that these problems would be corrected. The Court concludes that 5 || although these allegations are troubling, they are not adequate to give rise to a viable 6 || Eighth Amendment claim. A single day in which the temperature was over 80 7 || degrees and ongoing warm fountain drinking water were unpleasant circumstances 8 || but do not indicate a deprivation that is sufficiently serious to constitute cruel and 9 |} unusual punishment. And while Plaintiff complains that a ventilator was “filthy,” he 10 || does not allege that air quality was poor or dangerous as a result. 11 In addition, and critically, the SAC names a number of individual Defendants 12 || in their individual capacities. To state viable claims against them requires that 13 || Plaintiff allege facts linking each Defendant’s action or omission to a violation of 14 || his rights. See e.g., Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013); Lemire 15 || v. California Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074-1075 (9th Cir. 2013); 16 || Lacey v. Maricopa County, 693 F.3d 896, 915-916 (9th Cir. 2012) (en banc). 17 || Plaintiff does not identify a single one of the named Defendants who had anything 18 || to do with the ventilation, heat, and water matters of which he complains. Put 19 |) otherwise, there is no Defendant named against whom this claim could proceed even 20 || if it had adequately alleged an Eighth Amendment violation committed by someone. 2] It is significant to note that, in the December 10 Order, the Court took pains to 22 || make clear to Plaintiff that he cannot simply list Defendants and expect a federal 23 || court to look at matters appended to the complaint and attempt to construct claims 24 || against each of them. Similarly here, Plaintiff again has listed numerous 25 || Defendants, on the one hand, and has set forth lengthy rambling allegations of the 26 || wrongs he claims to have experienced while at TTCF and/or MCJ, on the other, but 27 || he fails to link the two. It is not enough to make a list of people you would like to 28 |} hold liable and then make a list of things that happened to you, without indicating 19

1 || who did what or failed to do what. The Court cannot supply those critical missing 2 || facts. Plaintiff, through the SAC, has disregarded the direction set forth in the 3 |} December 10 Order (quoted above) that for each claim he must state “together in 4 || one paragraph, the Defendants against whom the particular claim is brought; and. . . 5 || the factual allegations—Defendant by Defendant—that support the particular claim 6 || against each particular Defendant.” 7 Accordingly, Claim III fails to state a claim upon which relief could be 8 || granted. 9 10 || V. Claim IV 11 Claim IV is brought under the Eighth Amendment and rests on asserted 12 || delayed and denied medical treatment. Plaintiff alleges that when he was 13 || transferred to TTCF at the end of April 2019, he “told medical” that he earlier had 14 || been scheduled for medically necessary corrective surgery. When Plaintiff “spoke 15 || with mental health,” he was told he would not be given his previously-prescribed 16 || Lexapro until he was evaluated by the facility psychiatrist to determine if the 17 || medication was necessary. In May 2019, a state court judge wrote various orders 18 || directing that Plaintiff be seen by an outside orthopedic surgeon and evaluated for 19 |) his medication. On June 5, 2019, Plaintiff was seen by a psychiatrist, who 20 || prescribed medication other than Lexapro, which had “miserable side effects.” On 21 || June 6, 2019, Plaintiff saw an unidentified nurse about his back pain resulting from 22 || the laces in his orthopedic shoes having been removed, but no treatment was 23 || provided. On July 5, 2019, Plaintiff was told he could obtain free alternate shoes 24 || from the Commissary, but those shoes were not suitable and were not free. On July 25 |} 6, 2019, as described earlier, Defendant Webb took Plaintiff's orthopedic Nikes and 26 || offered him Crocs shoes as a replacement, which Plaintiff believed were not 27 || suitable. On August 2, 2019, Plaintiff was called to Clinic for an x-ray, but he told 28 || them his injury requires a CAT-scan. On September 30, 2019, Plaintiff was told 20

1 |} that he had an orthopedic evaluation scheduled for November, but by then, his leg 2 || had deteriorated.’ Earlier, the Court noted the applicable standards for stating an Eighth 4 || Amendment claim based on denied or delayed medical treatment. Plaintiff has 5 || alleged medical treatment that was delayed, viz., his psychotropic medication and an 6 || orthopedic evaluation related to his shoes and possible surgery. Claim IV, however, 7 || suffers from a fundamental defect that is the same as that inherent in Claim III, 8 || namely, a failure to identify any Defendant who can be said to have purposefully 9 || acted or failed to act in response to Plaintiff's medical needs. The Claim alleges 10 || only generalities, i.e.,, that Plaintiff spoke to “medical” or to “mental health” or a 11 || nurse, but the only Defendants named have nothing to do with medical care or 12 || treatment. With one exception, none of the named Defendants are alleged to have 13 |} been involved with, much less to have responsibility for, the delay in Plaintiff's 14 || receipt of his psychotropic medication and orthopedic evaluation. The sole 15 |] exception is Defendant Webb, who as discussed earlier, is alleged to have taken 16 || Plaintiff's Nikes pursuant to jail policy but to have agreed with him that he could 17 || receive them back if he provided a doctor’s order for them and to have offered him a 18 || shoe alternative. As previously concluded, her behavior cannot be found to meet the 19 |) deliberate indifference requirement. 20 Claim IV necessarily fails because it is nothing more than a list of events that 21 || have aggrieved Plaintiff untethered to any Defendant in this case. Again, Plaintiff 22 || has entirely disregarded the December 10 Order’s directive that he identify the 23 || particular Defendants sued in connection with each claim and set forth within each 24 || claim the factual allegations that support their liability in connection with that ao 26 |}? Plaintiff also alleges various things that happened after he was transferred from TTCF to MCJ, including that he refused to allow an x-ray to be taken when he was sent for his outside 27 orthopedic evaluation and fitting of orthopedic shoes, because he believed it was unnecessary. As 28 before, given the lack of any Defendant who could be responsible for these matters, no viable claim is stated based upon them. 21

1 || particular claim. Claim IV is simply a list of grievances with no basis for finding 2 || any actual Defendant liable for them. As a result, Claim IV fails to state a claim 3 || upon which relief can be granted. 4 5 * * * * x 6 As discussed above, the Court has concluded that the SAC fails to state any 7 || claim upon which relief can be granted against the Defendants. Plaintiff has been 8 || given multiple opportunities to attempt to state a cognizable claim, following clear 9 |} and express directions from this Court. He has failed to do so and has disregarded 10 |) prior Court Orders in significant respects. Plaintiff's continued inability to state 11 || cognizable claims against proper Defendants demonstrates that he cannot rectify 12 || these defects, and thus, further amendment would be futile. The Court therefore 13 || recommends that the request to proceed without prepayment of the filing fee be 14 |} DENIED, without leave to amend, and that this case be dismissed. 15 16 17 18 19 20 21 22 23 24 25 26 2F 28 22