1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON THOR LEONARD, No. 2:23-cv-02862-WBS-EFB (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CALIFORNIA STATE PRISON SACRAMENTO, et al. 15 Defendants. 16

17 Plaintiff is a former state prisoner proceeding without counsel in an action brought under 18 42 U.S.C. § 1983. Plaintiff has already been granted leave to proceed in forma pauperis (IFP) 19 pursuant to 28 U.S.C. § 1915, but his initial complaint (ECF No. 1) was dismissed with leave to 20 amend. ECF Nos. 6, 12. Plaintiff has filed an amended complaint. ECF No. 7. 21 Screening Standards 22 Federal courts must engage in a preliminary screening of cases in which prisoners seek 23 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 25 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 26 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 27 relief.” Id. § 1915A(b). 28 1 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 2 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 3 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 4 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 6 While the complaint must comply with the “short and plain statement” requirements of Rule 8, its 7 allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 U.S. 8 662, 679 (2009). 9 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 10 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 11 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of 12 a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 13 678. 14 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 15 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 16 content that allows the court to draw the reasonable inference that the defendant is liable for the 17 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 18 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 19 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 20 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 21 Screening Order 22 Plaintiff alleges that defendant correctional officer Scott shot plaintiff with a “block gun” 23 on April 10, 2021 after plaintiff responded to Scott’s “verbally abusive behavior” “by flipping off 24 defendant Scott and stating ‘Fuck you and the Green Wall.’” ECF No. 7 at 3. Plaintiff claims 25 that the use of such force was not justified. Id. at 4. He asserts claims for retaliation in violation 26 of the First Amendment and excessive force in violation of the Eighth Amendment against 27 defendant Scott. 28 //// 1 Plaintiff further alleges that “California Department of Corrections Sacramento” 2 (presumably either the California Department of Corrections and Rehabilitation or California 3 State Prison, Sacramento) filed a fraudulent district attorney referral, falsely claiming that 4 plaintiff assaulted another inmate who witnessed the April 10th incident. “This was done to 5 prevent plaintiff’s scheduled release from prison on May 16, 2021.” Id. 6 To state a claim of excessive force in violation of the Eighth Amendment, a plaintiff must 7 allege facts that show that a correctional officer used force against him maliciously and 8 sadistically to cause harm, rather than in a good-faith effort to maintain or restore discipline. 9 Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). To determine whether the evidence establishes 10 such a scenario, the factfinder may consider: (1) the need for force; (2) the relationship between 11 that need and the amount of force used; (3) the threat reasonably perceived by the officer; (4) the 12 extent of injury suffered by the plaintiff; and (5) any efforts made to temper the severity of the 13 forceful response. Id. at 7. While plaintiff has conclusorily alleged that Scott’s use of force was 14 not justified, he has provided insufficient factual details from which it may be inferred that the 15 use of force was done maliciously and sadistically to cause harm, rather than in a good-faith effort 16 to maintain or restore discipline. Thus, the claim as pleaded fails to state a claim. As plaintiff has 17 not been afforded an opportunity to amend the excessive force claim yet, the dismissal of 18 plaintiff’s excessive force claim must be with leave to amend to provided required factual details. 19 To state a claim for retaliation in violation of the First Amendment, a prisoner must allege 20 facts showing five elements: (1) that a state actor took some adverse action against him (2) 21 because of (3) his protected conduct, (4) that such action chilled his exercise of his First 22 Amendment rights, and (5) that the action did not reasonably advance a legitimate correctional 23 goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). The plaintiff need not allege 24 that his speech was actually inhibited or suppressed, but merely that the defendant’s conduct was 25 such as would chill or silence a person of ordinary firmness from future First Amendment 26 activities. Id. at 568-69. In the first screening order, the court informed plaintiff that he had 27 failed to allege protected conduct. While the amended complaint states conclusorily that 28 “flipping off a government official and using profane language is a constitutionally protected 1 activity,” this statement of the law is not accurate, and plaintiff has again failed to allege 2 protected conduct. Franklin v. Oregon, 563 F. Supp. 1310, 1326 (D. Or. 1983) (“Whatever First 3 Amendment rights an inmate retains in his use of expletives does not extend to directing them 4 toward a guard”), aff’d in part and rev’d in part on other grounds sub nom. Franklin v. Murphy 5 745 F.2d 1221 (9th Cir. 1984); Garner v. Nash, No. 3:16-cv-00410-RCJ-WGC, 2017 U.S. Dist. 6 LEXIS 33932, at *10 (D. Nev. Mar. 8, 2017) (finding that inmate’s “fuck you” directed at 7 correctional officer was not protected speech). Thus, the retaliation claim against Scott must be 8 again dismissed for failure to state a claim. 9 Lastly, plaintiff’s retaliation and due process claims against CDCR and/or CSP-Sac must 10 be dismissed because, as the court informed plaintiff in the first screening order, these entities are 11 not subject to suit under § 1983. ECF No. 6 at 4. 12 Despite notice of the deficiencies in his retaliation claim against Scott and his claims 13 against CDCR/CSP-Sac and an opportunity to amend, plaintiff has not corrected the deficiencies 14 in the amended complaint, indicating that further leave to amend these claims would be futile. 15 See Plumeau v. School Dist. # 40, 130 F.3d 432, 439 (9th Cir. 1997) (denial of leave to amend 16 appropriate where further amendment would be futile). 17 Conclusion 18 Accordingly, it is RECOMMENDED that: 19 1. Plaintiff’s retaliation and due process claims be dismissed for failure to state a claim 20 without further leave to amend; 21 2. Plaintiff’s excessive force claim against defendant Scott be dismissed with leave to 22 amend within 30 days of the district judge’s adoption of these recommendations. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. 27 ///// 28 ///// ] Such a document should be captioned “Objections to Magistrate Judge’s Findings and 2 || Recommendations.” Failure to file objections within the specified time may waive the right to 3 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 4 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). ° Hr /, oe □ 6 || Dated: May 12, 2025 bil TeLHACL 1 UNITED STATES MAGISTRATE IUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28