1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARRYL RAY MILLS, Case No.: 1:20-cv-00195-JLT-CDB (PC) 12 Plaintiff,

FINDINGS AND RECOMMENDATIONS

13 v. TO DISMISS ACTION AS FRIVOLOUS

AND FOR FAILURE TO STATE A CLAIM

14 C. PFEFFER, et al.,

15 Defendants. (Doc. 29)

16 21-DAY DEADLINE 17

18 19 Plaintiff Darryl Ray Mills is proceeding pro se and in forma pauperis in this civil rights 20 action pursuant to 42 U.S.C. § 1983. 21 I. PROCEDURAL BACKGROUND 22 Plaintiff initiated this action with the filing of his original complaint on February 7, 2020. 23 (Doc. 1.) The complaint named as defendants the warden and 11 correctional officers, sergeants, 24 and lieutenants at Kern Valley State Prison. (Id. at 1-4.) Plaintiff also named three individuals 25 associated with the Anti-Recidivism Coalition (“ARC”). 26 On October 18, 2020, this Court issued its First Screening Order. (Doc. 13.) The Court 27 held Plaintiff’s complaint failed to state a claim upon which relief could be granted. First, the Court found the complaint failed to allege facts that would permit the Court to determine whether 1 the ARC-related individuals were state actors subject to liability under Section 1983. (Id. at 4-5.) 2 Next, the Court found that the complaint failed to plead facts alleging the warden participated in, 3 directed, or otherwise was aware of and failed to prevent any of the alleged wrongdoing. (Id. at 4 5.) Next, the Court found that the complaint’s allegations were too vague and conclusory to 5 support claims under the First or Eighth Amendments. (Id. at 6-11.) Next, the Court found that 6 the complaint’s allegations failed to plead a due process violation relating to a rules violation 7 hearing. (Id. at 11-12.) Plaintiff was granted leave to amend his complaint to cure the 8 deficiencies identified in the screening order. (Id. at 16-17.) 9 On August 2, 2021, Plaintiff filed a first amended complaint (“FAC”). (Doc. 29.) Plaintiff 10 separately filed a document titled, “Chronological Evens Showing Support of Complaint 11 (Ongoing).” (Doc. 28.)1 12 II. SCREENING REQUIREMENT 13 The Court is required to screen complaints brought by prisoners seeking relief against a 14 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 15 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 16 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 17 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 18 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 19 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 20 III. PLEADING REQUIREMENTS 21 A. Federal Rule of Civil Procedure 8(a) 22 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 23

24 1 In its First Screening Order, the Court advised Plaintiff that if he chose to file an amended pleading, the amended complaint must be “complete in itself without reference to any 25 prior pleading” and that such amended pleading would supersede the original complaint. (Id. at 16.) For this reason, the Court declines to consider Plaintiff’s separately filed Chronology (Doc. 26 28.) The Court reviewed the filing and found it largely indecipherable. Should Plaintiff seek to file a second amended complaint to remedy deficiencies in the FAC identified herein, the 27 amended pleading should stand on its own, without supplementation by separate filings such as the Chronology. 1 exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain 2 “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. 3 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 4 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 5 quotation marks & citation omitted). 6 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 7 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 8 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 9 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 10 Id. (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as true, but legal 11 conclusions are not. Id. (citing Twombly, 550 U.S. at 555). 12 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 13 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 14 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal 15 theories. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation 16 of a civil rights complaint may not supply essential elements of the claim that were not initially 17 pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal 18 quotation marks & citation omitted), and courts “are not required to indulge unwarranted 19 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 20 marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 21 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 22 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted). 23 B. Linkage and Causation 24 Section 1983 provides a cause of action for the violation of constitutional or other federal 25 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 26 section 1983, a plaintiff must show a causal connection or link between the actions of the 27 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 1 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 2 act, participates in another’s affirmative acts, or omits to perform an act which he is legally 3 required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 4 F.2d 740, 743 (9th Cir. 1978) (citation omitted). 5 C. Supervisory Liability 6 Liability may not be imposed on supervisory personnel for the actions or omissions of 7 their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77; see e.g., 8 Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010) (plaintiff required to 9 adduce evidence the named supervisory defendants “themselves acted or failed to act 10 unconstitutionally, not merely that subordinate did”), overruled on other grounds by Castro v. 11 C’nty of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016); Jones v. Williams, 297 F.3d 930, 934 12 (9th Cir. 2002) (“In order for a person acting under color of state law to be liable under section 13 1983 there must be a showing of personal participation in the alleged rights deprivation: there is 14 no respondeat superior liability under section 1983”). 15 Supervisors may be held liable only if they “participated in or directed the violations, or 16 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th 17 Cir. 1989). “The requisite causal connection may be established when an official sets in motion a 18 ‘series of acts by others which the actor knows or reasonably should know would cause others to 19 inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Accord 20 Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (supervisory liability may be based on 21 inaction in the training and supervision of subordinates). 22 Supervisory liability may also exist without any personal participation if the official 23 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 24 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 25 F.2d 1435, 1446 (9th Cir. 1991) (citations & quotations marks omitted), abrogated on other 26 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 27 To prove liability for an action or policy, the plaintiff “must ... demonstrate that his 1 with final authority to establish that policy.” Waggy v. Spokane County Washington, 594 F.3d 2 707, 713 (9th Cir.2010). When a defendant holds a supervisory position, the causal link between 3 such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 4 Stapley, 607 F.2d 858, 862 (9th Cir. 1979). Vague and conclusory allegations concerning the 5 involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey v. 6 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 7 IV. DISCUSSION 8 A. Plaintiff’s First Amended Complaint 9 In his first amended complaint (FAC), Plaintiff names as defendants Warden C. Pfeffer, 10 the Anti-Recidivism Coalition (“ARC”), and three individuals associated with the ARC (Scott 11 Budnick, Sam Lewis and Lateshia Shanae Dunn-Johnson). (Doc. 29 at 1-3.) Plaintiff requests 12 injunctive relief and money damages.2 13 B. Plaintiff’s Claims 14 Plaintiff asserts two claims for relief: a violation of the Cruel and Unusual Punishments 15 Clause of the Eighth Amendment, and “Medical Care,” which the Court construes as a claim for 16 violation of the Eighth Amendment in the context of medical care. (See Doc. 29 at 3.) 17 According to the allegations in his FAC, during the period of his incarceration at Kern 18 Valley State Prison, between 2018 and 2021, Defendant Pfeffer (the warden) with Defendant 19 Dunn-Johnson and other unidentified correctional officers and psychologists, allowed the ARC 20 and its associated “Hollywood Productions” to fabricate reports, perform voodoo and witchcraft, 21 undertake satanic/demonic assaults, steal property, and undertake telepathy and visual 22 harassment. (Doc. 29 at 3-4.)3 This conduct traumatized Plaintiff and caused him severe 23 emotional, psychological and physical harm. The “productions” were undertaken without 24 Plaintiff’s consent and hindered visitation from family. Plaintiff’s phone calls also are “being 25 2 Shortly before filing the FAC, Plaintiff filed a motion for appointment of counsel (Doc. 26 25), which the Court denied. (Doc. 27.) Plaintiff’s prayer for relief in the FAC includes a request for appointment of counsel and an investigator. (Doc. 29 at 5.) Such a request is properly the 27 subject of a motion. 1 hacked.” (Id. at 4.) One or more Defendants failed to stop, intervene or respond to this conduct. 2 As a further result of the conduct described above, Plaintiff’s health needs were not 3 properly met. Notwithstanding Plaintiff’s filing of complaints, unidentified personnel were told 4 what to do through telepathy and Plaintiff’s complaints were not addressed. Relatedly, Plaintiff 5 was denied his right to certain, unidentified medical information. (Id.) Defendant Dunn-Johnson 6 plays a “key role” in the above-described conduct and as a “frivilous [sic] ‘producer’ misleading 7 all employed.” (Id. at 5.) 8 Failure to Link Conduct to Alleged Violation 9 In its First Screening Order, the Court advised Plaintiff that although he named Warden 10 Pfeffer as Defendant, he failed to assert any allegations of Warden Pfeffer’s involvement in the 11 conduct complained of and, thus, had failed to adequately link any unconstitutional conduct to the 12 Warden. (Doc. 13 at 5.) 13 Plaintiff’s FAC did not remedy this deficiency. The only allegation in the FAC relating to 14 Warden Pfeffer is that he “allowed” the ARC to fabricate reports, perform voodoo and witchcraft, 15 undertake satanic/demonic assaults, steal property, and undertake telepathy and visual 16 harassment. (Doc. 29 at 3-4.) However, Plaintiff has not “specifically alleged” the causal 17 connection between Warden Pfeffer and the claimed constitutional violation. See Fayle v. Stapley, 18 607 F.2d 858, 862 (9th Cir. 1979). Plaintiff’s allegations concerning Warden Pfeffer’s 19 involvement are vague and conclusory and, thus, are insufficient to state a claim. See Ivey v. 20 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 21 Failure to Plead or Establish State Actor 22 In its First Screening Order, the Court concluded that Plaintiff failed to include any facts 23 that would clarify the role of the Anti-Recidivism Coalition (ARC). (Doc. 13 at 4-5.) The Court 24 determined that it was impossible to determine if any individuals affiliated with this organization 25 can be deemed state actors for purposes of Section 1983 liability under the two applicable tests 26 described in the First Screening Order – the “public-function test” and the “joint-actor test.” (Id.) 27 Plaintiff’s FAC did not remedy this deficiency. Although three ARC-associated 1 of the Kern Valley State Prison. In particular, whereas Plaintiff referred to prison employees by 2 their title when named as defendants in his original complaint (i.e., “correctional officer,” 3 “sergeant” and “lieutenant”), the individuals named in the FAC (with the exception of Warden 4 Pfeffer) are not referred to by title, leading the Court to suspect they are not prison employees. 5 Further, it remains unclear from the FAC whether and the extent to which the ARC engaged in 6 “traditionally and exclusively governmental” functions or conduct “inextricably intertwined” with 7 a government function such that they may be proper parties in a Section 1983 action. (Id.) 8 (citations omitted). 9 Accordingly, because Plaintiff has not alleged that the three ARC-associated Defendants 10 acted under color of state law or otherwise pleaded facts allowing the Court to determine whether 11 the Defendants are private or state actors, the claims again Budnick, Lewis and Dunn-Johnson 12 also must be dismissed. See Gritchen v. Collier, 254 F.3d 807, 812 (9th Cir. 2001) (“To state a 13 claim under § 1983, the plaintiff must allege a violation of his constitutional rights and show that 14 the defendant’s actions were taken under color of state law.”). 15 Failure to Plead Nonfrivolous Claims 16 Where, as here, a plaintiff proceeds in forma pauperis, the Court must dismiss a complaint 17 or portion thereof if it raises claims that are frivolous. 28 U.S.C. §§ 1915(e)(2)(B)(i), 1915A(b). 18 These provisions authorize the court to dismiss a frivolous in forma pauperis complaint sua 19 sponte. Neitzke v. Williams, 490 U.S. 319, 322 (1989). Dismissal based on frivolousness is 20 appropriate where the claim is “based on an indisputably meritless legal theory” or “whose 21 factual contentions are clearly baseless.” Id. at 327. 22 Various of Plaintiff’s allegations set forth in the FAC – specifically, those relating to 23 “voodoo,” “witchcraft,” satanic influences and telepathy – have been deemed frivolous by other 24 courts. E.g., Oak v. Winter, No 2:22-cv-00517-MEMF(PDx), 2022 WL 2787676, at *12 (C.D. 25 Cal. June 27, 2022) (voodoo); McIntosh v. Thomaz, No. , 2019 WL 3363792, at *2 (N.D. Cal. 26 May 14, 2019) (mind control); Tubach v. Brown, No. 1:12-cv-01370-MJS (PC), 2012 WL 27 5356035, at *4 (E.D. Cal. Oct. 30, 2012) (satanic influences); Khan v. Unitarian Church of 1 | (witchcraft). The undersigned follows these courts in concluding that, in the absence of 2 | allegations of clear underlying facts to support his assertions of voodoo, witchcraft, satanic 3 | influences and telepathy, these allegations are “fanciful,” and subject to dismissal as 4 | “frivolous.” See Neitzke, 490 U.S. at 325. 5 V. CONCLUSION AND RECOMMENDATIONS 6 Based on the above, the Court finds that Plaintiff’s FAC is frivolous and fails to state a 7 | claim on which relief may be granted. Plaintiff has not alleged any facts that would entitle him to 8 | relief. Because the complaint lacks a cognizable legal theory or fails to allege sufficient facts to 9 | support a cognizable legal theory, the Court must dismiss the complaint. 10 Based upon the facts alleged, the Court further finds that the deficiencies cannot be cured 11 | by amendment, and further leave to amend would be futile. See Lopez v. Smith, 203 F.3d 1122, 12 1130 (9th Cir. 2000). In particular, the Court advised Plaintiff in its First Screening Order of 13 | deficiencies he must remedy in any amended pleading, and those deficiencies were not cured in 14 | the FAC. 15 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed, without 16 | leave to amend, based on Plaintiff’s failure to state a claim upon which relief may be granted and 17 | for frivolousness. 18 These Findings and Recommendations will be submitted to the district judge assigned to 19 | this case, pursuant to 28 U.S.C. § 636(b)(1). Within 21 days of the date of service of these 20 | Findings and Recommendations, a party may file written objections with the Court. The 21 | document should be captioned, “Objections to Magistrate Judge’s Findings and 22 || Recommendations.” Failure to file objections within the specified time may result in waiver of 23 | rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 24 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 25 | IT IS SO ORDERED. °° | Dated: _ October 10, 2023 | br Pr 27 UNITED STATES MAGISTRATE JUDGE 28