1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL P. O’NEIL, Case No. 1:23-cv-00597 JLT EPG (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS IN FULL

13 v. (Doc. 8) 14 A. BUNCH, et al., 15 Defendants. 16 17 Michael O’Neil is a state prisoner proceeding pro se in this civil rights action pursuant to 18 42 U.S.C. § 1983. The assigned magistrate judge issued Findings and Recommendations, 19 recommending that Plaintiff’s case be dismissed with prejudice for failure to state a claim. (Doc. 20 8.) The magistrate judge further recommended that the case be dismissed for failure to prosecute 21 and failure to comply with a court order based on Plaintiff’s failure to respond to the screening 22 order. Plaintiff filed objections. (Doc. 9.) 23 According to 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, the Court has conducted a de 24 novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s 25 objections, the Court finds the Findings and Recommendations are supported by the record and 26 proper analysis. 27 Plaintiff first addresses his filing delays, arguing that his knowledge of the law and access 28 to legal resources are limited, and that his “paperwork” was held for 45 days without justification. 1 (Doc. 9 at 1-2.) The Court construes this as a response to the magistrate judge’s recommendation 2 that Plaintiff’s claims be dismissed for failure to prosecute and failure to comply with the Court’s 3 screening order. However, these reasons are insufficient to warrant a deviation from the 4 magistrate judge’s recommendation. “Prisoners do not have ‘an abstract, freestanding right to a 5 law library or legal assistance.’ Prisoners must demonstrate that the alleged shortcomings in the 6 library or legal assistance program ‘hindered efforts in pursuing a claim.’” McLean v. Shelton, 7 2016 WL 1064486, at *2 (D. Or. Mar. 16, 2016) (quoting Lewis v. Casey, 518 U.S. 343, 351 8 (1996)). Plaintiff fails to demonstrate his limited access to resources have hindered his efforts. 9 Plaintiff claims prison administrative officers withheld his paperwork when he attempted 10 to electronically file his “claim to the court.” (Doc. 9 at 1.) However, to the extent he refers to the 11 prison withholding his original complaint, this has no bearing on the Findings and 12 Recommendations that found that Plaintiff failed to comply with a court order by not filing an 13 amended complaint or notifying the Court that he wished to stand upon his original complaint. 14 Moreover, Plaintiff does not explain how that this impeded his efforts to file an amended 15 complaint. In other words, this explanation does not speak to the basis for the magistrate judge’s 16 recommendation. (See Doc. 1.) 17 Plaintiff also states that he “would very much like to prosecute, but does not know how to 18 go about that and if standing on [his] complaint now would satisfy the court’s previous order then 19 that’s what [he] would like to do.” (Doc. 9 at 4.) Unfortunately, the Court agrees that Plaintiff’s 20 original complaint failed to state a cognizable claim. Thus, standing on his complaint will not 21 result in the case moving forward. In his objections, Plaintiff maintains his “belief” that he made 22 a “solid claim” supported by facts, which he contends should warrant “additional 23 inquiry/investigating by the court.” (Id. at 2, 4.) However, the additional facts asserted in 24 Plaintiff’s objections are not sufficient to cure the deficiencies noted in the Findings and 25 Recommendations. 26 Plaintiff first asserts a staff member by the name of S. Smith used their position of 27 authority to remove his medical chrono clearing him for single cell living. (Doc. 9 at 2.) S. Smith 28 is not a named defendant and to the extent Plaintiff attempts to state a claim against a named 1 Defendant, this single, conclusory allegation is insufficient to connect S. Smith’s actions with 2 those of any named Defendant. Similarly, Plaintiff argues a staff member by the name of Captain 3 Ramirez was somehow involved in the investigation of an alleged “drug debt” Plaintiff had 4 accrued, but Captain Ramirez is not a named defendant nor does this allegation state a claim 5 against any named Defendant. 6 Finally, Plaintiff attempts to cure the noted deficiencies of his conspiracy claim. 7 According to the complaint, Plaintiff alleges that Defendants Thompson and Pena “put on his 8 chrono that he fears for his safety” and “[t]o insure other inmates would become aware of this 9 false rumor they began, they conspired with Defendant Bunch by having him issue an ‘ASU 10 Placement Notice.’” (Doc. 1 at 8, ¶¶ 53-54.) In the Findings and Recommendations, the 11 magistrate judge found that “Plaintiff’s allegations that defendants Thompson and Pena conspired 12 with defendant Bunch to ensure that other inmates would become aware of the false statement, 13 there are no factual allegations, such as anything any of these defendants said or did, to support 14 Plaintiff’s conclusory assertion of a conspiracy between these defendants.” (Doc. 8 at 15.) In 15 response, Plaintiff asserts that under California law, Unit/Institutional Classification Committee 16 hearings require the presence of a chairperson and recorder, which means the hearings are 17 recorded and “there is literally [sic] a verbal record of what was said during the committee 18 action.” (Doc. 9 at 3.) He continues that the experience level requirements mean that between 19 Defendants Bunch, Thompson, and Pena, there “was/is … experience … as well as expertise” of 20 20-30 years. (Id.) Plaintiff explains the reason for providing this additional information is to show 21 that these Defendants “were well aware of what their actions would cause.” (Id.) However, 22 Plaintiff fails to explain how the hearing being recorded or Defendants’ awareness are sufficient 23 to state a conspiracy claim. As the magistrate judge indicated, 24 To state a claim for conspiracy under section 1983, Plaintiff must show the existence of an agreement or meeting of the minds to 25 violate constitutional rights, Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001), and 26 that an “actual deprivation of his constitutional rights resulted from the alleged conspiracy,” Hart v. Parks, 450 F.3d 1059, 1071 (9th 27 Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma, 866 F.2d 1121, 1126 (9th Cir. 1989)). “‘To be liable, each 28 participant in the conspiracy need not know the exact details of the 1 plan, but each participant must at least share the common objective of the conspiracy.’” Franklin, 312 F.3d at 441 (quoting United 2 Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1541 (9th Cir.1989)). Additionally, Plaintiff must show that Defendants 3 “conspired or acted jointly in concert and that some overt act [was] done in furtherance of the conspiracy.” Sykes v. State of California, 4 497 F.2d 197, 200 (9th Cir. 1974). “[M]ore than vague conclusory allegations are required to state a [conspiracy] claim.” Mosher v. 5 Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). 6 | (Doc. 8 at 15 n. 2.) On its own, an allegation that a defendant was aware of the effect his actions 7 | would cause is not sufficient to state a claim for conspiracy under section 1983, and Plaintiff 8 | makes no assertions that Defendants said or did anything to support a claim for conspiracy, in 9 | order to cure the deficiency noted by the magistrate judge. Thus, the Court finds the Findings and 10 | Recommendations are supported by the record and proper analysis. Accordingly, the Court 11 | ORDERS: 12 1. The Findings and Recommendations issued on September 18, 2023, (Doc. 8), are 13 ADOPTED IN FULL. 14 2. This action is DISMISSED with prejudice. 15 3. The Clerk of Court is directed to terminate any pending motions, close this 16 case, and enter judgment against Plaintiff. 17 18 IT IS SO ORDERED. 19 Dated: _ October 4, 2023 :

TED STATES DISTRICT JUDGE

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