1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN EDWARD MITCHELL, Case No. 1:20-cv-00857-NODJ-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

PERMIT PLAINTIFF TO PROCEED ON

13 v. COGNIZABLE CLAIMS AND DISMISS

REMAINING CLAIMS AND DEFENDANT1

14 H. BAEZA, et al., (Doc. Nos. 30, 33) 15 Defendants. 14-DAY OBJECTION PERIOD2 16

17 18 Plaintiff John Edward Mitchell is a state prisoner proceeding pro se and in forma pauperis 19 in this civil rights action under 42 U.S.C. § 1983. Plaintiff proceeds on his Second Amended 20 Complaint. (Doc. No. 30). As more fully set forth below, the undersigned finds the Second 21 Amended Complaint states cognizable First Amendment retaliation claims against Defendants 22 Baeza and Gutierrez, Eighth Amendment Failure to Protect claims against Defendants Baeza, 23 Gutierrez, Valencia-Mendoza, John Doe #1, Parra, and Vang, and conspiracy claims against 24

25 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). 26 2 On December 1, 2023, this case was assigned to the No District Judge (“NODJ”) docket due to the elevation of District Judge Ana I. de Alba to the Ninth Circuit Court of Appeals. This case will remain 27 pending until a new district judge is appointed or until another district judge considers these Findings and Recommendations. Despite this anticipated delay, the objection period remains fourteen (14) days, absent 28 leave for an extension of time being granted. 1 Defendants Baeza and Gutierrez, but fails to state any other cognizable claims. Therefore, the 2 undersigned recommends that Plaintiff be allowed to proceed only on the claims deemed 3 cognizable and the remaining claims and defendants be dismissed without prejudice. 4 BACKGROUND AND SUMMARY OF OPERATIVE PLEADING 5 A. Procedural History 6 Plaintiff initiated this action by filing a Complaint under 42 U.S.C. § 1983 on June 22, 7 2020. (Doc. No. 1). Prior to the Court screening the Complaint, Plaintiff filed a First Amended 8 Complaint. (Doc. No. 10). Because it appeared from the face of the Complaint that this action 9 was not timely filed, the undersigned issued an Order to Show Cause (“OSC”) why the action 10 should not be dismissed for failure to comply with the applicable statute of limitations. (Doc. No. 11 14). Plaintiff filed a response asserting, inter alia, that he is entitled to 1281 days of tolling 12 because he was either exhausting his administrative remedies or was unable to access his legal 13 documents during that time. (Doc. No. 18 at 5). On July 9, 2021, the undersigned ordered that no 14 further action be taken on the order to show cause. (Doc. No. 20).3 The Court then screened 15 Plaintiffs FAC and found that it failed to state any cognizable claim. (See Doc. No. 29). Plaintiff 16 timely filed his operative Second Amended Complaint. (Doc. No. 30, “SAC”). 17 The Court screened Plaintiff’s SAC and found that it stated cognizable First Amendment 18 retaliation claims against Defendants Baeza and Gutierrez, Eighth Amendment Failure to Protect 19 claims against Defendants Baeza, Gutierrez, Valencia-Mendoza, John Doe #1, Parra, and Vang, 20 and conspiracy claims against Defendants Baeza and Gutierrez, but failed to state any other 21 cognizable claims. (See Doc. No. 31). Plaintiff was afforded the option to either (1) voluntarily

22 3 For actions brought under 42 U.S.C. § 1983, the statute of limitations is dictated “by the forum state’s statute of limitations for personal injury actions,” which is two years in California. Whiting v. City of 23 Cathedral City, 735 F. App’x 927, 928 (9th Cir. 2018); Cal. Civ. Proc. Code § 335.1. California Code of Civil Procedure § 352.1(a) provides an additional two years for those imprisoned “for a term less than for 24 life” when the cause of action accrues. This limitations period is tolled while an inmate exhausts administrative remedies. Gilmore v. Silva, 812 F. App’x 689, 690 (9th Cir. 2020). If a complaint is 25 untimely, it may still proceed if subject to equitable tolling. Fink v. Shedler, 192 F.3d 911, 916–17 (9th Cir.1999). At this stage, the Court will not rule on the timeliness of Plaintiff’s SAC. Taking the assertions 26 in Plaintiff’s Response to the Court’s OSC as true, (Doc. No. 18), he might be entitled to equitable tolling that would make his SAC timely. If appropriate, Defendants may challenge those assertions at a later 27 stage of these proceedings. The Court’s decision to permit this case to proceed should not be construed as a finding that the case was timely filed. 28 1 dismiss Defendant McDuffy and the remaining claims not deemed cognizable, or (2) stand on his 2 SAC subject to the undersigned filing a Findings and Recommendation to dismiss Defendant 3 McDuffy and the claims deemed not cognizable. (Id. at 24-25). On December 14, 2023, Plaintiff 4 filed a Notice indicating he intends to stand on his SAC. (Doc. No. 33). 5 B. Summary of the SAC 6 Plaintiff’s SAC is based on a series of incidents that occurred at California State Prison, 7 Corcoran (“COR”) from September 2015 to February 2016. (See generally id.). The SAC names 8 as Defendants the following COR staff: (1) Correctional Officer H. Baeza, (2) Correctional 9 Officer C.M. Gutierrez, (3) Correctional Officer J. Valencia-Mendoza, (4) Correctional Officer A. 10 Parra, (5) Correctional Officer Vang, and (6) John Doe #1. (Id. at 2). The SAC also names as a 11 Defendant (7) FNU McDuffy, CDCR Inmate # AR 9722. (Id.). 12 Liberally construed, the SAC alleges First Amendment retaliation claims against 13 Defendants Baeza, Gutierrez, Valencia-Mendoza, John Doe #1, Parra, Vang, and McDuffy (id. at 14 9-13), Eighth Amendment failure to protect claims against Defendants Baeza, Gutierrez, 15 Valencia-Mendoza, Parra, John Doe #1, and Vang (id. at 13-14); state tort negligence claims 16 against Defendants Parra, Valencia-Mendoza, John Doe #1, and Vang (id. at 15-16); conspiracy 17 claims against Defendants Baeza, Gutierrez, Vang, Parra, Valencia-Mendoza, John Doe #1, and 18 McDuffy (id. at 16-17); Bane Act claims against Defendants Baeza, Gutierrez, Parra, Valencia- 19 Mendoza, Vang, John Doe #1, and McDuffy (id. at 17-18); and Intentional Infliction of 20 Emotional Distress claims against Defendants Baeza and Gutierrez (id. at 18). The following 21 facts are presumed true at this stage of the screening process. 22 On June 14, 2015, Plaintiff filed a grievance against unspecified COR employees for 23 violating his religious rights. (Id. at 5 ¶ 1). Three months later, on September 24, 2015, 24 Defendant Baeza told Plaintiff “get back in there before I slap the **** out of you” while 25 attempting to provoke Plaintiff by making jerking movements at him and kicking Plaintiff’s 26 property into his cell. (Id. ¶ 2). At the time, Plaintiff was awaiting transfer to CSP-Sacramento 27 (“CSP-SAC”) to attend a pretrial matter in Mitchell v. Haviland, 2:09-cv-03012 (E.D. Cal. 2009), 28 another prisoner civil rights case alleging excessive force claims against CDCR officers. (Id.). 1 On October 29, 2015, while being housed at CSP-SAC Plaintiff told his mental health 2 clinician that he was having anxiety attacks and nightmares about being returned to COR because 3 Defendants Baeza and Gutierrez were constantly threatening and harassing him and were 4 attempting to find someone to attack him. (Id. at 5-6 ¶ 4). During a classification committee 5 hearing, the clinician advised the committee of Plaintiff’s concerns, completed a CDC 128 6 Informational Chrono and sent it to COR. (Id. at 6 ¶ 4). On or about November 9, 2015, 7 Counselors Moreno and Bass (not Defendants in this action) told Plaintiff, “We received the 128 8 from CSP-Sac, you won’t leave until you deserve it.” (Id. ¶ 5). As Plaintiff was crossing the 9 yard with Moreno and Bass that day, Defendant Gutierrez was manning the tower. (Id.). 10 Gutierrez shook his head at Plaintiff and called him “staff complaint Mitchell.” (Id.). 11 On December 1, 2015, while Plaintiff was speaking with another correctional officer in 12 the dayroom about sending out his legal mail, Defendant Gutierrez yelled down from the tower 13 into the dayroom full of inmates, “We know you drop dimes thats [sic] all you do, youre [sic] not 14 wanted on this yard!” (Id. ¶ 6). Defendant McDuffy was present and asked Defendant Gutierrez 15 if he could go into another inmate’s cell to give him a tattoo, and Gutierrez yelled down “No, 16 Mitchell is 602ing and snitching on our program so until you guys get him out of here theres [sic] 17 no more of that.” (Id.). In the days following this incident, Baeza and Gutierrez repeatedly 18 searched the cells of other inmates, took their TVs and other appliances. (Id. at 6-7 ¶ 6). Other 19 inmates told Plaintiff that Defendant Baeza was telling the inmates that the searches were because 20 of Plaintiff. (Id. at 7 ¶ 6). 21 On or about December 2, 2015, Defendant Baeza said to Plaintiff, “you filed a Complaint 22 on me huh, you want to move back to five bldg., hey your [sic] my buddy, we’re friends, you 23 need a[n] escort to medical you got safety concerns.” (Id. ¶ 7). Later that day, Baeza said to 24 Plaintiff, “that[’]s a fine hot mess you got yourself into.” (Id.). Plaintiff infers these statements 25 were “a warning to get off the yard” and that he “suffered more fear and confusion” and told his 26 mental health clinician that “he believed his life was in danger.” (Id.). 27 On January 2, 2016, Defendant Valencia-Mendoza allowed Defendant McDuffy out of his 28 cell during PM med-line. (Id. ¶ 9). The SAC asserts upon information and belief that McDuffy 1 does not receive medication at PM med-line. (Id.). Defendants Parra and Doe #1 allowed 2 McDuffy to exit the building without checking his I.D. card to verify whether he received 3 medication. (Id.). Plaintiff was also released from his cell and upon exiting the building 4 encountered Defendant McDuffy who stated, “you still snitchin Mitchell” while attacking 5 Plaintiff. (Id.). No yard or tower officer intervened to stop the attack. (Id.). After Plaintiff 6 entered the building, McDuffy attacked him again. (Id. at 8 ¶ 9). Defendants Parra, Doe #1, and 7 Valencia-Mendoza watched but did not intervene. (Id.). After about two minutes, Officers 8 Billings and Vang arrived. (Id.). Officer Billings repeatedly shouted “stop” to no avail. (Id.). 9 Officer Vang stood on the perimeter watching. (Id.). Finally, Defendant Valencia-Mendoza 10 shouted “stop” and McDuffy stopped attacking Plaintiff. (Id.). During the attack, Plaintiff’s left 11 eyelid was sliced down the middle and Plaintiff later received reconstructive surgery to repair the 12 injury. (Id.). A few days after the incident, Defendant McDuffy told Plaintiff, “They lied to me.” 13 (Id.). 14 On January 4, 2016, Defendant Baeza came to Plaintiff’s cell door and laughed about the 15 attack, saying, “[I] heard they had fun without me.” (Id. ¶ 10). On January 20, 2016, Baeza again 16 came to Plaintiff’s cell and threatened to cut off Plaintiff’s hair, calling it a “dirty hot mess.” (Id. 17 ¶ 11). 18 Plaintiff was found not guilty of a Rule Violation Report for fighting related to the 19 January 2, 2016 incident, while McDuffy was found guilty. (Id. ¶ 12). 20 1. Retaliation 21 The SAC asserts a retaliation claim against Defendant Baeza based on: (1) his threat to 22 “slap the **** out of” Plaintiff on September 24, 2015, (2) his comments to Plaintiff on 23 December 2, 2015, which Plaintiff interpreted as a “veiled threat”; (3) Baeza’s cell searches of 24 Plaintiff’s neighbors, coupled with Baeza blaming the searches on Mitchell; (4) Baeza threatening 25 on January 20, 2016 to cut off Plaintiff’s hair; (5) Baeza conspiring with Gutierrez and McDuffy 26 to have McDuffy attack Plaintiff in retaliation for Plaintiff’s filing of various grievances; and (6) 27 Baeza’s making various threats against Plaintiff which provoked Plaintiff to file more grievances, 28 thereby triggering further retaliation against him. (Id. at 10 ¶ 23) 1 The SAC asserts a retaliation claim against Defendant Gutierrez based on: (1) Gutierrez 2 calling Plaintiff “staff complaint Mitchell” on November 9, 2015; (2) Gutierrez yelling to 3 Plaintiff on December 1, 2015, loud enough for all the inmates in the dayroom to hear, “we know 4 you drop dimes that[’]s all you do your [sic] not wanted on this yard” then telling McDuffy that 5 he could not give other inmates tattoos until other inmates “get [Plaintiff] out of here”; and (3) 6 Gutierrez conspiring with Defendants Baeza and McDuffy to have McDuffy attack Plaintiff in 7 retaliation for his filing of various grievances. (Id. at 11). The SAC asserts that because of “his 8 negative interactions with CDCR officers” Plaintiff was diagnosed with Post-Traumatic Stress 9 Disorder. (Id. at 12 ¶ 24). 10 The SAC asserts a retaliation claim against Defendant Valencia-Mendoza based on: (1) 11 Valencia-Mendoza releasing McDuffy from his cell; and (2) failing to intervene when McDuffy 12 attacked Plaintiff. (Id. ¶ 25). The SAC contends that Valencia-Mendoza took those “adverse 13 actions” because Plaintiff filed staff complaints against Defendants Baeza and Gutierrez, and that 14 a causal connection between these events “is shown by the timeline of events and or his actions or 15 inactions did not reasonably advance a legitimate correctional nor penological purpose. (Id.). 16 The SAC asserts a retaliation claim against Defendants Parra, Doe #1, and Vang based on: 17 (1) these Defendants allowing McDuffy to exit the building for PM med line so that he could 18 attack Plaintiff on the yard; and (2) allowing the attack to continue inside of the building, where 19 Parra and Doe #1 were assigned as floor officers. (Id. ¶ 26). The SAC alleges the actions of 20 Defendants Parra, Doe #1, and Vang caused him depression, fear, and serious bodily injury, and 21 asserts a causal connection is demonstrated by the timeline of events. (Id.). 22 Finally, the SAC asserts a retaliation claim against Defendant McDuffy based on 23 McDuffy attacking Plaintiff on January 2, 2016, which the SAC alleges was done “because 24 [Plaintiff] filed CDCR 602s and Complaints against C/Os Baeza and Gutierrez.” (Id. at 13 ¶ 27). 25 The SAC alleges the attack has made Plaintiff reluctant to submit grievances “because of fear of 26 not knowing who’s going to attack him next.” (Id.). To establish a causal connection with 27 Plaintiff’s First Amendment conduct, the SAC points to McDuffy’s declaration, attached to the 28 SAC. (Id.). 1 2. Failure to Protect 2 The SAC asserts an Eighth Amendment Failure to Protect claim against Defendants Baeza 3 and Gutierrez based on: (1) Gutierrez and Baeza telling other inmates that Plaintiff was a “child 4 molester” and a “rat” that was “602ing the program,” and searching the cells and confiscating the 5 property of other inmates, knowing this would expose Plaintiff to a substantial risk of being 6 attacked; (2) paying McDuffy to attack Plaintiff. (Id. at 13 ¶ 30). 7 The SAC asserts a Failure to Protect claim against Defendant Valencia-Mendoza based 8 on: (1) Valencia-Mendoza opening McDuffy’s cell door at PM medication call on January 2, 9 2016, despite McDuffy not receiving medication in the evening; (2) Valencia-Mendoza having a 10 reasonably opportunity to prevent or end McDuffy’s attack on Plaintiff in the dayroom on 11 January 2, 2016, but failing to do so. (Id. ¶ 31). 12 The SAC asserts a Failure to Protect claim against Defendant Parra based on (1) Parra 13 allowing Defendant McDuffy to exit his building into the yard, where he attacked Plaintiff, 14 without checking that McDuffy was receiving medication at PM med-line; and (2) failing to 15 intervene when McDuffy attacked Plaintiff inside the building. (Id. ¶ 32). 16 The SAC asserts a Failure to Protect claim against Defendants Vang and John Doe #1 17 based on their failure to intervene when Defendant McDuffy attacked Plaintiff inside the building 18 on January 2, 2016 despite having a realistic opportunity to do so. (Id.). 19 3. Negligence 20 The SAC asserts a negligence claim against Defendants Baeza and Gutierrez based on 21 their referring to Plaintiff as a “snitch” and “child molester,” soliciting another inmate to attack 22 Plaintiff, and interfering with Plaintiff’s grievances. (Id. at 15 ¶ 35). The SAC contends that 23 these actions breached Defendants’ duty to Plaintiff and were the proximate cause of physical and 24 emotional harm to Plaintiff, including PTSD. (Id.). 25 The SAC asserts a negligence claim against Defendants Valencia-Mendoza, Parra, Doe 26 #1, and Vang based on their failure to restrict Defendant McDuffy’s movement, which was the 27 proximate cause of McDuffy’s attack on Plaintiff and the resulting injuries. (Id. at 15-16 ¶ 36). 28 //// 1 4. Other State Claims 2 Plaintiff asserts against all Defendants, based on unspecified conduct, a California Tort 3 Claims Act claim, Bane Act claim, and violations of California Penal Code §§ 2600 and 2601. 4 (Id. ¶ 37). 5 5. Conspiracy 6 The SAC asserts that Defendants Baeza, Gutierrez, Vang, Parra, Valencia-Mendoza, Doe 7 #1 and McDuffy “conspired together, acted individually or jointly in concert to physically assault 8 the Plaintiff in violation of” his constitutional rights. (Id. at 16 ¶ 40). 9 Specifically, the SAC alleges that Defendant Baeza, Gutierrez and McDuffy conspired to 10 plan the attack, (id. at 16-17 ¶ 41), and Defendants Valencia-Mendoza, Parra, Doe #1 and 11 McDuffy conspired to release McDuffy from his cell during med-line and to not intervene when 12 McDuffy attacked Plaintiff (id. at 17 ¶ 42). 13 6. Bane Act Claims 14 The SAC asserts that based on the foregoing allegations, all Defendants interfered with 15 Plaintiff’s state and federal rights to file grievances without fear of being attacked in retaliation 16 and or the right to be protected from attack. (Id. at 18 ¶ 47). 17 7. Intentional Infliction of Emotional Distress 18 The SAC asserts that unspecified conduct by Defendants Baeza and Gutierrez was 19 intended to harm Plaintiff, was “outrageous” and so “extreme” as to exceed all bounds of what is 20 usually tolerated in a “civilized community.” (Id. at 18 ¶¶ 48-50). Their conduct caused PTSD to 21 Plaintiff, and thus Defendants Baeza and Gutierrez are liable for intentional infliction of 22 emotional distress. (Id. ¶ 50). 23 8. Relief Sought 24 As relief for all of the above claims, Plaintiff seeks an unspecified order be issued to the 25 Director of CDCR, that he be awarded $150,000 in compensatory and punitive damages for each 26 of the claims in the SAC, and that he be granted various other relief. (Id. at 19). 27 //// //// 28 1 APPLICABLE LAW AND ANALYSIS 2 A. Screening Requirement and Rule 8 3 Plaintiff commenced this action while in prison and is subject to the Prison Litigation 4 Reform Act (“PLRA”), which requires, inter alia, that the court screen any complaint that seeks 5 relief against a governmental entity, its officers, or its employees before directing service upon 6 any defendant. 28 U.S.C. § 1915A. This requires the Court to identify any cognizable claims and 7 dismiss the complaint, or any portion, which is frivolous or malicious, fails to state a claim upon 8 which relief may be granted, or seeks monetary relief from a defendant who is immune from such 9 relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 10 At the screening stage, the Court accepts the factual allegations in the complaint as true, 11 construes the complaint liberally, and resolves all doubts in the Plaintiff’s favor. Jenkins v. 12 McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 13 2003). A court does not have to accept as true conclusory allegations, unreasonable inferences, or 14 unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 15 1981). Critical to evaluating a constitutional claim is whether it has an arguable legal and factual 16 basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). 17 The Federal Rules of Civil Procedure require only that the complaint include “a short and 18 plain statement of the claim showing the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). 19 Nonetheless, a claim must be facially plausible to survive screening. This requires sufficient 20 factual detail to allow the court to reasonably infer that each named defendant is liable for the 21 misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Moss v. U.S. Secret Service, 22 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not 23 sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. 24 Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. Although detailed factual allegations are not 25 required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 26 statements, do not suffice,” Iqbal, 556 U.S. at 678 (citations omitted), and courts “are not required 27 to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 28 2009) (internal quotation marks and citation omitted). 1 If an otherwise deficient pleading could be cured by the allegation of other facts, the pro 2 se litigant is entitled to an opportunity to amend their complaint before dismissal of the action. 3 See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc); Lucas v. Department of 4 Corr., 66 F.3d 245, 248 (9th Cir. 1995). However, it is not the role of the Court to advise a pro se 5 litigant on how to cure the defects. Such advice “would undermine district judges’ role as 6 impartial decisionmakers.” Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 7 1131 n.13. 8 B. Color of State Law 9 Section 1983 allows a private citizen to sue for the deprivation of a right secured by 10 federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). “To 11 establish § 1983 liability, a plaintiff must show both (1) deprivation of a right secured by the 12 Constitution and laws of the United States, and (2) that the deprivation was committed by a 13 person acting under color of state law.” Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 14 1149 (9th Cir. 2011) (citing Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003)); Soo Park v. 15 Thompson, 851 F.3d 910, 921 (9th Cir. 2017). “The ‘under color of law’ requirement under 16 § 1983 is the same as the Fourteenth Amendment's ‘state action’ requirement.” Chudacoff at 1149 17 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 928 (1982)). 18 Courts have consistently rejected attempts by prisoner plaintiffs to sue fellow inmates 19 under § 1983. See, e.g., Jackson v. Foster, 372 F. App’x 770, 771 (9th Cir. 2010) (concluding 20 that “the district court properly dismissed Jackson’s excessive force claim because [fellow] 21 inmate . . . did not act under color of state law under any formulation of the governmental actor 22 tests”); see also Gettimier v. Burse, 2015 WL 75224, at *5 n.3 (E.D. Mo. Jan. 6, 2015) (“The fact 23 that a fellow inmate is not a ‘state actor’ for purposes of § 1983 litigation is so fundamental as to 24 not require citation.”); Rigano v. Cty. of Sullivan, 486 F. Supp. 2d 244, 256 n.15 (S.D.N.Y. 2007) 25 (“It is well-established that a § 1983 claim is only cognizable against a state actor and not a 26 fellow inmate.”); cf. Williams v. Calidonna, 2007 WL 432773, at *1-2 (N.D.N.Y. Feb. 2, 2007) 27 (dismissing § 1983 action against inmates despite allegation they were working as state 28 informants). It is uncontested that at all times relevant, Defendant McDuffy was an inmate in the 1 custody of CDCR. Accordingly, Plaintiff cannot proceed on his federal claims against Defendant 2 McDuffy in this § 1983 action. And as set forth below, because Plaintiff’s state law claims are 3 barred for failure to comply with the Government Claims Act, Plaintiff’s state law claims against 4 McDuffy also fail. Thus, the undersigned finds the SAC fails to state any claim against inmate 5 McDuffy. 6 C. Doe Defendant 7 The SAC does not provide a name or other identifying information for one of the officers 8 who was allegedly present for the January 4, 2015 attack on Plaintiff. (See Doc. No. 30 at 8 ¶ 9). 9 Rule 10(a) of the Federal Rules of Civil Procedure requires a plaintiff to include the names of the 10 parties sued in the action. Fed. R. Civ. P. 10(a). The use of Doe defendants is generally 11 disfavored in federal court because the United States Marshal cannot serve a summons and 12 complaint on an anonymous defendant. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 13 1980). Plaintiff provides the date and location of the incident and the names of other officers who 14 were present; however, this is insufficient by itself to serve the officers in question. “A plaintiff 15 may refer to unknown defendants as Defendant John Doe 1, John Doe 2, and so on, but he must 16 allege sufficient facts to show how each doe defendant individually violated his constitutional 17 rights. If the plaintiff does so, he may be given leave to obtain the names of doe defendants 18 during discovery and seek leave to amend to name those defendants.” Finefeuiaki v. Maui Police 19 Dep’t, 2018 WL 4839001, at *3 (D. Haw. Oct. 4, 2018), citing Wakefield v. Thompson, 177 F.3d 20 1160, 1163 (9th Cir. 1999). Here, because as set forth below Plaintiff has alleged facts sufficient 21 to state a cognizable Eighth Amendment claim as to Defendant John Doe #1, the undersigned 22 recommends that the SAC proceed on the claim against Defendant Doe #1 and that Plaintiff be 23 permitted to engage in discovery for the limited purpose of identifying Defendant Doe #1 and 24 amend the SAC accordingly. 25 D. First Amendment Retaliation 26 It is clear prisoners have First Amendment rights to file a grievance or civil rights 27 complaint against correctional officials. Brodheim v. Cry, 584 F. 3d 1262, 1269 (9th Cir. 2009). 28 To state a claim for First Amendment retaliation, a plaintiff must allege five elements: (1) he 1 engaged in protected activity; (2) the state actor took an adverse action against the plaintiff; (3) a 2 causal connection between the adverse action and the protected conduct; (4) the defendant’s 3 actions would chill or silence a person of ordinary fitness from protected activities; and (5) the 4 retaliatory action did not advance a legitimate correctional goal. Chavez v. Robinson, 12 F.4th 5 978, 1001 (9th Cir. 2021) (quoting Rhodes, 408 F.3d at 567–68). A retaliatory motive may be 6 shown by the timing of the allegedly retaliatory act or other circumstantial evidence, as well as 7 direct evidence. Bruce v. Ylst, 351 F.3d 1283, 1288–89 (9th Cir.2003); McCollum v. Ca. Dep’t of 8 Corr. And Rehab., 647 F.3d 870, 882 (9th Cir. 2011). Mere speculation that a defendant acted 9 out of retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014) (citing 10 cases). 11 The undersigned addresses Plaintiff’s claims as to the six remaining Defendants4 in 12 seriatim. 13 1. Officer Baeza 14 The SAC’s retaliation claims against Baeza are based, first, on three instances of verbal 15 threats or statements Baeza made to Plaintiff. On one occasion, Baeza told Plaintiff “get back in 16 there before I slap the **** out of you.” (Doc. No. 30 at 5 ¶ 1). “[V]erbal harassment or abuse 17 . . . is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.” Oltarzewski v. 18 Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (internal citations omitted). Defendant Baeza’s 19 threat to slap Plaintiff if he didn’t comply with an order, without more, does not rise to the level 20 of a constitutional violation. Moreover, the SAC does not allege any facts linking Baeza’s 21 statement to Plaintiff’s First Amendment conduct. Plaintiff’s speculation that Baeza’s comments 22 on September 24, 2015 were motivated by Plaintiff’s filing of a grievance against unspecified 23 COR officers more than three months earlier, is insufficient to support an inference of such a 24 connection. (See Doc. No. 30 at 5). Finally, from the minimal factual context in Plaintiff’s claim, 25 it appears Defendant Baeza was ordering Plaintiff to get back into his cell, and thus his command 26 had the legitimate correctional objective of preserving or maintaining institutional order. Thus, 27 4 Because, as set forth above, the SAC cannot bring a section 1983 claim against McDuffy, the Court does 28 not analyze the individual claims alleged against McDuffy. 1 the SAC fails to state a retaliation claim based on September 24, 2015 incident. 2 Next, the SAC alleges that on December 2, 2015, Defendant Baeza told Plaintiff, “you 3 filed a Complaint on me huh, you want to move back to five bldg., hey your [sic] my buddy, 4 we’re friends, you need a[n] escort to medical you got safety concerns.” (Id. ¶ 7). Plaintiff 5 himself notes that “at first it made no sense” what Defendant Baeza meant by these comments. 6 (Id.). Later that day, Baeza said to Plaintiff, “thats a fine hot mess you got yourself into.” (Id.). 7 Plaintiff eventually interpreted these comments together as a warning for Plaintiff to get off the 8 yard. (Id.). The Court does not find that these comments warrant an exception to the general rule 9 that verbal harassment does not rise to the level of a constitutional violation. See Oltarzewski, 10 830 F.2d at 139. While the “mere threat of harm can be an adverse action,” Watison v. Carter, 11 668 F.3d 1108, 1114 (9th Cir. 2012), Defendant Baeza did not make any discernible threat of 12 harm against Plaintiff based on him continuing to exercise his First Amendment rights. 13 Accordingly, the SAC fails to state a retaliation claim based on these comments. 14 Third, the SAC asserts that Defendant Baeza retaliated against Plaintiff by initiating cell 15 searches of Plaintiff’s neighbors, confiscating thousands of dollars of inmates’ property, and 16 blaming Plaintiff for the searches to foster animosity against him among other inmates. (Doc. 17 No. 30 at 10 ¶ 23). This claim is supported by the assertion that “Baeza also took the ‘adverse 18 actions’ to do cell searches taking inmate appliances and contraband . . . and incite them by 19 blameing [sic] his actions on the plaintiff . . .” (Id.). Plaintiff also cites the declaration of inmate 20 Cesar Pizana, in which Pizana states that Defendant Baeza and Officer Alvarez searched his cell 21 on an unspecified date in December 2015, confiscated a cell phone, and told Pizana “Inmate 22 Mitchell aka Yaya was snitching on inmates on the yard.” (Doc. No. 30 at 23). Pizana also 23 alleges that Baeza “would tell inmates that were STG to assault Mitchell aka Yaya to get him off 24 the yard because he was snitching on the yard.” (Id.). The Court finds these factual allegations 25 sufficient to support a retaliation claim. Labeling an inmate a “snitch” in response to his filing of 26 grievances in order to subject him to retaliation by fellow inmates can state a cognizable federal 27 claim. See Valandingham v. Borquez, 866 F.2d 1135, 1138 (9th Cir. 1989); see also Sutton v. 28 Wash. State Dep't of Corr., 2015 WL 4748233, at *7 (E.D. Wash. Aug. 11, 2015) (“It is well 1 established that being revealed as a snitch may be sufficient to [establish a substantial risk of 2 serious harm].”) According to Pizana’s declaration, Baeza invited other inmates to attack 3 Plaintiff because he was “snitching on the yard[,]” which appears to be a reference to Plaintiff 4 filing grievances and/or complaints. (Doc. No. 30 at 23). Thus, Baeza’s adverse action of 5 labeling Plaintiff a “snitch” was motivated by Plaintiff’s protected First Amendment conduct. 6 Plaintiff alleges these actions had a chilling effect on his filing of further grievances and caused 7 him psychological harm. (Id. at 11 ¶ 23). And the undersigned can discern no legitimate 8 penological purpose for inviting other inmates to attack Plaintiff. Thus, the SAC adequately 9 alleges a First Amendment retaliation claim against Defendant Baeza based on his labeling 10 Plaintiff a snitch. 11 Fourth, the SAC asserts that Defendant Baeza retaliated against Plaintiff by telling him 12 that he would cut off Plaintiff’s hair, because it was “a hot mess.” (Id. at 8 ¶ 11). First, the Court 13 is not persuaded that Baeza’s comments can be construed as an “adverse action.” In context, 14 Baeza’s remark was at most verbal harassment, which as noted above is insufficient to establish a 15 constitutional violation. See Oltarzewski, 830 F.2d at 139. Moreover, the SAC is devoid of any 16 facts linking the comment to Plaintiff’s protected First Amended conduct. Plaintiff’s mere 17 speculation that the remark was made in response to Plaintiff’s filing of a grievance or complaint 18 is insufficient to state a claim. See Wood, 753 F.3d at 905. 19 Fifth, the SAC alleges that Baeza retaliated against Plaintiff by conspiring with 20 Defendants Gutierrez and McDuffy to have McDuffy attack Plaintiff. (Id. at 10 ¶ 23). This claim 21 is supported by the attached declaration of Defendant McDuffy.5 In it, McDuffy asserts that 22 Defendants Gutierrez and Baeza solicited him to attack Plaintiff because he was a “snitch” and 23 was “complaining via 602s about the way the building was running.” (Id. at 26). Thus, liberally 24 5 While McDuffy’s declaration is unsigned, at the screening stage this does not warrant disregarding the 25 allegations therein. The Court liberally construes the detailed allegations in the declaration to be part of the SAC and thus presumes the factual assertions true at this stage of the screening process. See Jenkins, 26 395 U.S. at 421; Bernhardt, 339 F.3d at 925. While the declaration appears to describe a quid pro quo between McDuffy and Plaintiff in exchange for preparation of the declaration, because the Court does not 27 engage in credibility determinations at the screening stage, this is also not a basis for disregarding the allegations set forth in the declaration. 28 1 construed, the SAC alleges that Defendants Baeza and Gutierrez directed McDuffy to attack 2 Plaintiff in response to his filing of prison grievances. As a result, Plaintiff suffered a physical 3 assault, which is adequate to establish a chilling effect. See Rhodes v. Robinson, 408 F.3d 559, 4 568 (9th Cir. 2005) (Plaintiff sufficiently alleges a chilling effect by demonstrating harm from 5 retaliatory actions that is “more than minimal.”). Because having inmates attack one another 6 clearly does not constitute a legitimate penological objective, these facts adequately allege a First 7 Amendment retaliation claim against Defendant Baeza. 8 Finally, the SAC alleges that by harassing Plaintiff repeatedly and prompting him to file 9 grievances, Baeza set up Plaintiff for further retaliation. This tenuous argument—essentially 10 alleging that Baeza is responsible for future unspecified retaliation by unknown parties, is 11 unpersuasive. Accordingly, it does not establish a retaliation claim. 12 2. Officer Gutierrez 13 The SAC asserts a retaliation claim against Defendant Gutierrez first based on Gutierrez 14 calling Plaintiff “staff complaint Mitchell” on November 9, 2015. As noted above, however, 15 mere verbal harassment is insufficient to state a claim. Oltarzewski, 830 F.2d at 139. 16 Next, the SAC alleges that Gutierrez retaliated by yelling to Plaintiff on December 1, 17 2015, loud enough for all the inmates in the dayroom to hear, “we know you drop dimes that[’]s 18 all you do your [sic] not wanted on this yard” then telling McDuffy that he could not give other 19 inmates tattoos until other inmates “get [Plaintiff] out of here.” (Doc. No. 30 at 6 ¶ 6). The 20 undersigned finds that this conduct is sufficient to establish a retaliation claim. As noted above, 21 labeling an inmate a “snitch” in response to his filing of grievances in order to subject him to 22 retaliation by fellow inmates can state a cognizable federal claim. See Valandingham, 866 F.2d at 23 1138; see also Sutton, 2015 WL 4748233 at 7. 24 Here, Gutierrez announced to a large group of Plaintiff’s fellow inmates that he “drop[s] 25 dimes that’s all you do[,]” effectively labeling Plaintiff a “snitch,” and openly encouraged the 26 inmates to “get [Plaintiff] out of here.” (Doc. No. 30 at 6 ¶ 6). These statements can reasonably 27 be interpreted as inviting harm on Plaintiff and encouraging other inmates to retaliate against 28 Plaintiff for his protected First Amendment conduct. See Valandingham, 866 F.2d at 1138. 1 Accordingly, Defendant Gutierrez’s actions violated Plaintiff’s First Amendment rights. 2 As to Plaintiff’s claim that Gutierrez retaliated against him by conspiring with Defendant 3 Baeza to have McDuffy attack Plaintiff, as noted above, Defendant McDuffy’s declaration 4 supports this claim. The declaration alleges that Baeza and Gutierrez specifically directed 5 McDuffy to harm Plaintiff and take his property in response to his filing of “602s” and his 6 “snitching.” (Doc. No. 30 at 26). Thus, the SAC adequately alleges a First Amendment claim 7 against Gutierrez based on this allegation as well. 8 3. Officer Valencia-Mendoza 9 The SAC alleges a retaliation claim against Defendant Valencia-Mendoza based on 10 Valencia-Mendoza releasing McDuffy from his cell and failing to intervene when McDuffy 11 attacked Plaintiff. (Doc. No. 30 at 12 ¶ 25). The SAC contends that Valencia-Mendoza took 12 those “adverse actions” because Plaintiff filed staff complaints against Defendants Baeza and 13 Gutierrez, and that a causal connection between these events “is shown by the timeline of events 14 and or his actions or inactions did not reasonably advance a legitimate correctional nor 15 penological purpose. (Id.). 16 Because Plaintiff does not specify which protected First Amendment conduct prompted 17 Valencia-Mendoza’s alleged retaliatory acts, however, the Court is unable to infer a causal 18 connection based on “the timeline of events.” Nor is there any other evidence supporting the 19 inference that Valencia-Mendoza’s actions were motivated by Plaintiff’s First Amendment 20 conduct. Thus, Plaintiff retaliation claim as to Valencia-Mendoza amounts to mere speculation, 21 which is insufficient to state a claim. See Wood, 753 F.3d at 905. 22 4. Officers Parra, Doe #1 and Vang 23 The SAC asserts a retaliation claim against Defendants Parra, Doe #1, and Vang based on 24 the three Defendants allowing McDuffy to exit the building for PM med line and allowing the 25 attack on Plaintiff to continue inside of the building, where Parra and Doe #1 were assigned as 26 floor officers. (Doc. No. 30 at 12 ¶ 26). Plaintiff asserts that “the ‘Causal Connection’ is 27 apparent when the timeline and events are reviewed.” (Id.). The mere assertion that a causal 28 connection can be inferred from an unspecified timeline is insufficient to show such a connection. 1 Indeed, beyond this conclusory statement, the SAC fails to allege any facts showing that 2 Defendants Parra, Doe #1, and Vang’s actions and inactions were motivated by Plaintiff’s First 3 Amendment conduct. Accordingly, Plaintiff’s retaliation claim as to these three Defendants 4 amounts to mere speculation, which is insufficient to state a First Amendment retaliation claim. 5 See Wood, 753 F.3d at 905. 6 E. Eighth Amendment Failure to Protect Claim 7 “[T]he treatment a prisoner receives in prison and the conditions under which he is 8 confined are subject to scrutiny under the Eighth Amendment,” which prohibits “cruel and 9 unusual punishment.” Helling v. McKinney, 509 U.S. 25, 31 (1993); Morgan v. Morgensen, 465 10 F.3d 1041, 1045 (9th Cir. 2006); U.S. Const. Amend. VIII. “[P]rison officials have a duty . . . to 11 protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 12 825, 833 (1994) (quoting Cortes-Quinones v. Jimenez Nettleship, 842 F.2d 556, 558 (1st Cir. 13 1988)). “The failure of prison officials to protect inmates from attacks by other inmates may rise 14 to the level of an Eighth Amendment violation if prison officials know of and disregard a 15 substantial risk of serious harm to the plaintiff.” Thomas v. Hernandez, 2022 WL 1173339, at *4 16 (E.D. Cal. Apr. 20, 2022) (citing Farmer, 511 U.S. at 847, Hearns v. Terhune, 413 F.3d 1036 (9th 17 Cir. 2005). “Whether a prison official had the requisite knowledge of a substantial risk is a 18 question of fact subject to demonstration in the usual ways, including inference from 19 circumstantial evidence . . . and, a factfinder may conclude that a prison official knew of a 20 substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842. To state a 21 failure to protect claim, the prisoner must establish that the prison official was deliberately 22 indifferent to a serious threat to the plaintiff’s safety. Id. at 834 (citing Helling v. McKinney, 509 23 U.S. 35, 35 (1993)). Thus, a showing of deliberate indifference rests on facts clearly evincing 24 “obduracy and wantonness, not inadvertence or error in good faith.” Whitley v. Albers, 475 U.S. 25 312, 319 (1986). “Liability may follow only if a prison official ‘knows that inmates face a 26 substantial risk of serious harm and disregards that risk by failing to take reasonable measures to 27 abate it.’” Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013) (quoting Farmer, 28 511 U.S. at 847). To satisfy the objective prong, it is enough for the inmate to demonstrate that 1 he was exposed to a substantial risk of some range of serious harms; the harm he actually suffered 2 need not have been the most likely result among this range of outcomes. Lemire v. California 3 Dep’t of Corr. & Rehab., 726 F.3d 1062, 1076 (9th Cir. 2013). “[I]t does not matter whether the 4 risk comes from a single source or multiple sources, any more than it matters whether a prisoner 5 faces an excessive risk . . . for reasons personal to him or because all prisoners in his situation 6 face such a risk.” Farmer, 511 U.S. at 843. 7 1. Officer Baeza and Officer Gutierrez 8 The SAC alleges Defendants Baeza and Gutierrez violated Plaintiff’s Eighth Amendment 9 rights by telling other inmates that Plaintiff was a “child molester” and a “rat” that was “602ing 10 the program,” and searching the cells and confiscating the property of other inmates, knowing this 11 would expose Plaintiff to a substantial risk of being attacked. The Court does not accept as true 12 that Gutierrez and Baeza specifically labeled Plaintiff a “child molester” or “rat” to other inmates 13 because these claims are supported only by Plaintiff’s conclusory statements. The SAC does, 14 however, contain sufficient factual allegations establishing that Baeza and Gutierrez made 15 disparaging remarks about Plaintiff to other inmates that exposed Plaintiff to a substantial risk of 16 serious harm. 17 As to Defendant Gutierrez, on December 1, 2015, he yelled to the entire dayroom at COR 18 that Plaintiff “drop[s] dimes” and openly invited other inmates to “get [Plaintiff] out of here.” 19 (Doc. No. 30 at 6 ¶ 6). Labeling an inmate a “snitch,” as Defendant Gutierrez effectively did, is 20 well-established as exposing that inmate to a substantial risk of serious harm. See Sutton, 2015 21 WL 4748233 at *7. Moreover, the inmate who ultimately attacked Plaintiff, Inmate McDuffy, 22 was present for this incident. (Doc. No. 30 at 6 ¶ 6). And when McDuffy asked Gutierrez if he 23 could tattoo an inmate in his cell, Gutierrez specifically blamed Plaintiff for not allowing 24 McDuffy to do so. (Id.). When McDuffy attacked Plaintiff roughly a month later, he stated “you 25 still snitchin Mitchell” (Id. at 7 ¶ 9). These facts support an inference that the attack was 26 motivated at least in part by Defendant Gutierrez’s comments, which exposed Plaintiff to a 27 substantial risk of serious harm. Thus, the FAC alleges a cognizable Eighth Amendment failure 28 to protect claim against Defendant Gutierrez. 1 As to Defendant Baeza, the Court accepts as true the declaration of Cesar Pizana, who 2 attests that in December 2015, Defendant Baeza specifically labeled Plaintiff a snitch to him and 3 other “STG”6 inmates when conducting cell searches and confiscating inmate property, and 4 invited them to get rid of Plaintiff. While it is unclear whether Baeza’s comments specifically 5 prompted Inmate McDuffy to attack Plaintiff, the fact that Baeza labeled Plaintiff a “snitch” to 6 other inmates and invited them to attack Plaintiff is sufficient to establish that he exposed Plaintiff 7 to a substantial risk of serious harm. And the injury that Plaintiff ultimately suffered—physical 8 and psychological injuries resulting from McDuffy’s attack—were clearly within the range of 9 harms expected to result from Baeza’s actions. Thus, the SAC adequately alleges an Eighth 10 Amendment failure to protect claim against Baeza due to his labeling Plaintiff a snitch and 11 inviting other inmates to attack Plaintiff. 12 The undersigned also finds the SAC adequately alleges that Baeza and Gutierrez are liable 13 for failure to protect based on their alleged hiring of Inmate McDuffy to attack Plaintiff. In his 14 declaration, Defendant McDuffy states that in December 2015, Defendant Gutierrez summoned 15 him to the rotunda, where Defendant Baeza handed McDuffy a set of documents about Plaintiff 16 and told him to “get rid of this snitch.” (Doc. No. 30 at 25-26). The documents purported to 17 show that Plaintiff was a child molester who had been filing various complaints and grievances 18 while at COR. (Id. at 26). Defendant Baeza told McDuffy “I want him hurt.” (Id.). Gutierrez 19 told McDuffy to “bag up” Plaintiff, which meant to take all of his property. (Id.). “A day or two 20 later” McDuffy waited for an opportunity to attack Plaintiff, assaulted him on the yard and took a 21 chain off Plaintiff’s neck. (Id.). These factual allegations, liberally construed, establish that 22 Defendants Baeza and Gutierrez deliberately exposed Plaintiff to a serious risk of harm by 23 inciting violence against him by another inmate and that Plaintiff was attacked as a result. These 24 allegations are sufficient to set forth an Eighth Amendment failure to protect claim. 25 2. Officer Valencia-Mendoza 26 The SAC asserts a Failure to Protect claim against Defendant Valencia-Mendoza based 27

28 6 The Court infers this refers to inmates who were members of a Security Threat Group, i.e. a prison gang. 1 on: (1) Valencia-Mendoza opening McDuffy’s cell door at PM medication call on January 2, 2 2016, despite McDuffy not receiving medication in the evening; (2) Valencia-Mendoza having a 3 reasonably opportunity to prevent or end McDuffy’s attack on Plaintiff in the dayroom on 4 January 2, 2016, but failing to do so. (Id. ¶ 31). 5 The Court finds that Valencia-Mendoza releasing McDuffy from his cell on January 2, 6 2016 is sufficient to establish deliberate indifference to a serious risk of substantial harm. The 7 unsigned declaration of Inmate McDuffy supports the inference that Defendant Valencia- 8 Mendoza was aware of a plan to attack Plaintiff. In it, McDuffy states that after he first attacked 9 Plaintiff on the yard and Plaintiff fled into the building, “the C/O that was in the watch tower told 10 me to ‘finish him off.’” (Id. at 26). The facts alleged in the SAC make clear that McDuffy is 11 referring to Defendant Valencia-Mendoza. Liberally construed, this adequately alleges that 12 Valencia-Mendoza supported the attack on Plaintiff, and the Court can thus reasonably infer that 13 Valencia-Mendoza was aware of McDuffy’s plan to attack Plaintiff when he released him from 14 his cell that night. Indeed, Valencia-Mendoza not only enabled the attack, but actively 15 encouraged McDuffy to continue attacking Plaintiff after an initial assault. This is sufficient to 16 establish an Eighth Amendment failure to protect claim. 17 The SAC also asserts that Valencia-Mendoza had a reasonable opportunity to intervene 18 after McDuffy began attacking him. The SAC alleges that Valencia-Mendoza was manning the 19 control tower at the time of the attack and that the attack took place “directly in front of his 20 window.” (Doc. No. 30 at 14 ¶ 31). Thus, the Court reasonably infers that Defendant Valencia- 21 Mendoza was aware of McDuffy’s attack on Plaintiff and the risk it posed of substantial harm. 22 Nevertheless, he failed to intervene. For all the reasons set forth above, the SAC adequately 23 alleges an Eighth Amendment failure to protect claim against Defendant Valencia-Mendoza. 24 3. Officer Parra 25 Next, the SAC asserts a Failure to Protect claim against Defendant Parra based on (1) 26 Parra allowing Defendant McDuffy to exit his building into the yard, where he attacked Plaintiff, 27 without checking that McDuffy was receiving medication at PM med-line; and (2) failing to 28 intervene when McDuffy attacked Plaintiff inside the building. (Doc. No. 30 at 14 ¶ 32). 1 While Defendant Parra may have been negligent in permitting Inmate McDuffy to exit the 2 building without verifying that he received evening medication, his actions do not demonstrate 3 deliberate indifference to a serious risk of harm. There are no facts—beyond Plaintiff’s 4 speculation as to Defendant Parra’s involvement in a conspiracy—establishing Parra’s knowledge 5 that McDuffy intended to harm Plaintiff that evening. Thus, the SAC does not allege facts 6 showing Defendant Parra possessed the state of mind necessary to satisfy the second prong of a 7 deliberate indifference claim. 8 However, the SAC adequately alleges that Defendant Parra failed to intervene after 9 Defendant McDuffy attacked Plaintiff “directly in front of” Parra and John Doe #1 in Building 4. 10 (Id.). The SAC alleges elsewhere that the attack lasted at least 2 minutes and that at no time did 11 Defendant Parra intervene to stop the assault despite it occurring in his immediate vicinity. (Id. at 12 8 ¶ 9). Thus, Defendant Parra had a reasonable opportunity to protect Plaintiff from further harm 13 but failed to do so. The SAC therefore adequately alleges an Eighth Amendment claim for failure 14 to protect against Defendant Parra. 15 4. Doe #1 16 The SAC alleges that Defendants Doe #1 was in the same proximity to the attack as 17 Defendant Parra but failed to intervene. (Id. at 14 ¶ 32). Thus, Officer Doe #1 was aware of the 18 substantial risk of harm posed to Plaintiff by allowing the attack to continue but failed to take any 19 action to stop it. Thus, the SAC adequately alleges an Eighth Amendment failure to protect claim 20 against Defendant Doe #1. 21 5. Officer Vang 22 According to the SAC, Officers Vang and Billings arrived on the scene after the attack 23 had been underway for some time. (Id. at 8 ¶ 9). Officer Billings shouted “stop” in an attempt to 24 halt the altercation but was unsuccessful. (Id.). Meanwhile, Officer Vang “stood on the 25 perimeter watching.” (Id.). Liberally construing the SAC, Officer Vang was in close proximity 26 to the attack on Plaintiff and had a realistic opportunity to intervene to prevent further harm, but 27 failed to do so. Thus, the SAC adequately alleges an Eighth Amendment failure to protect claim 28 as to him as well. 1 F. Civil Conspiracy 2 A civil conspiracy is a combination of two or more persons who, by some concerted 3 action, intend to accomplish some unlawful objective for the purpose of harming another, which 4 results in damage. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999). To prove 5 a civil conspiracy, the plaintiff must show that the conspiring parties reached a unity of purpose 6 or common design and understanding, or a meeting of the minds in an unlawful agreement. Id. 7 To be liable, each participant in the conspiracy need not know the exact details of the plan, but 8 each participant must at least share the common objective of the conspiracy. Id. A defendant’s 9 knowledge of and participation in a conspiracy may be inferred from circumstantial evidence and 10 from evidence of the defendant’s actions. Id. at 856–57. 11 Conclusory allegations of conspiracy are not enough to support a § 1983 conspiracy 12 claim. Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (per curiam). Although an 13 “agreement or meeting of minds to violate [the plaintiff’s] constitutional rights must be 14 shown,” Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989), “[d]irect evidence 15 of improper motive or an agreement to violate a plaintiff’s constitutional rights will only rarely be 16 available. Instead, it will almost always be necessary to infer such agreements from 17 circumstantial evidence or the existence of joint action.” Mendocino Environmental Center v. 18 Mendocino County, 192 F.3d 1283, 1302 (9th Cir. 1999). Thus, “an agreement need not be overt, 19 and may be inferred on the basis of circumstantial evidence such as the actions of the 20 defendants.” Id. at 1301. 21 Here, the SAC asserts that Defendants Baeza, Gutierrez, Vang, Parra, Valencia-Mendoza, 22 Doe #1 and McDuffy “conspired together, acted individually or jointly in concert to physically 23 assault the Plaintiff in violation of” his constitutional rights. (Id. at 16 ¶ 40). Specifically, the 24 SAC alleges that Defendant Baeza, Gutierrez and McDuffy conspired to plan the attack, (id. at 25 16-17 ¶ 41), and Defendants Valencia-Mendoza, Parra, Doe #1 and McDuffy conspired to release 26 McDuffy from his cell during med-line and to not intervene when McDuffy attacked Plaintiff (id. 27 at 17 ¶ 42). 28 This claim is supported, at least in part, by the attached declaration of Defendant 1 McDuffy. As noted above, the declaration describes a meeting in December 2015 during which 2 Defendants Baeza and Gutierrez gave McDuffy a set of documents about Plaintiff and told him to 3 “get rid of this snitch.” (Doc. No. 30 at 25-26). Defendant Baeza told McDuffy “I want him 4 hurt.” (Id.). Gutierrez told McDuffy to “bag up” Plaintiff. (Id.). “A day or two later” McDuffy 5 waited for an opportunity to attack Plaintiff, assaulted him on the yard and took a chain off 6 Plaintiff’s neck. (Id.). After his initial attack on Plaintiff, the tower officer on duty, who is not 7 identified by name, told McDuffy to “finish [Plaintiff] off.” (Id. at 26). As noted above, the 8 Court infers that the SAC is referring to Defendant Valencia-Mendoza, who was the tower officer 9 on duty in Plaintiff’s yard. 10 Liberally construing the allegations in the declaration, the FAC adequately alleges a 11 conspiracy claim as to Defendants Baeza, Gutierrez, and Valencia-Mendoza. The SAC alleges 12 that Defendants Baeza and Gutierrez met with McDuffy and ordered him to attack Plaintiff and 13 steal his property, which McDuffy subsequently did. While McDuffy’s declaration does not 14 allege that Valencia-Mendoza was involved in soliciting McDuffy to attack Plaintiff, the fact that 15 Valencia-Mendoza released McDuffy from his cell and then encouraged McDuffy to “finish 16 [Plaintiff] off” after the initial assault supports an inference that Valencia-Mendoza was aware of 17 the attack and shared in the unlawful objective of harming Plaintiff. 18 As to Defendants Parra, Vang, and John Doe #1, however, the SAC fails to state a 19 conspiracy claim. The SAC does not allege any facts from which the Court can infer that these 20 Defendants were aware of the plan to harm Plaintiff or that any of their actions were consciously 21 done in furtherance of that objective. Notably, McDuffy does not mention any coordination with 22 these Defendants in his declaration nor allege any facts to suggest they were aware of a plan to 23 attack Plaintiff. Plaintiff’s mere speculation to that effect is insufficient to sustain a claim. See 24 Claiborne v. Beebe, 2008 WL 544577, at *3-4 (E.D. Cal. Feb. 26, 2008), report and 25 recommendation adopted, 2008 WL 942661 (E.D. Cal. Apr. 7, 2008); Sherman v. Hill, 2022 WL 26 17345926, at *12 (C.D. Cal. Sept. 14, 2022), report and recommendation adopted, 2022 WL 27 17342194 (C.D. Cal. Nov. 30, 2022). 28 Thus, the SAC adequately alleges a claim of civil conspiracy as to Defendants Baeza, 1 Gutierrez, and Valencia-Mendoza sufficient to survive the low threshold for sua sponte screening 2 pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). See Wilhelm v. Rotman, 680 F.3d 1113, 1123 3 (9th Cir. 2012). 4 D. State Law Claims and Government Claims Act 5 The SAC alleges a number of state law claims, including for negligence, intentional 6 infliction of emotional distress, and violations of the Bane Act. California’s Government Claims 7 Act requires that a tort claim against a public entity or its employees be presented to the 8 California Victim Compensation and Government Claims Board, formerly known as the State 9 Board of Control, no more than six months after the cause of action accrues. Cal. Gov’t Code §§ 10 905.2, 910, 911.2, 945.4, 950–950.2. Presentation of a written claim, and action on or rejection 11 of the claim are conditions precedent to suit. State v. Superior Court of Kings County (Bodde), 32 12 Cal.4th 1234, 1245 (Cal. 2004); Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 13 (9th Cir. 1995); see also Inman v. Anderson, 294 F. Supp. 3d 907, 925 (N.D. Cal. 2018) 14 (Government Claims Act compliance required for claims under California Bane Civil Rights Act, 15 Cal. Gov’t Code 52.1). Because Plaintiff does not allege compliance with the Government 16 Claims Act as to any of his state law claims—including his claims for negligence, intentional 17 infliction of emotional distress, the Bane Act, the California Tort Claims act, and California Penal 18 Code §§ 2600 and 2601—the SAC fails to state any cognizable state law claims. 19 CONCLUSION 20 For the reasons set forth above, the undersigned finds that Plaintiff states cognizable First 21 Amendment retaliation claims against Defendants Baeza and Gutierrez, Eighth Amendment 22 Failure to Protect claims against Defendants Baeza, Gutierrez, Valencia-Mendoza, John Doe #1, 23 Parra, and Vang, and conspiracy claims against Defendants Baeza and Gutierrez. The 24 undersigned will therefore recommend Plaintiff be permitted to proceed on the above claims and 25 the remaining claims be dismissed. Because Defendant McDuffy was not a state actor, the 26 undersigned will recommend he be dismissed from this action. Finally, the undersigned will 27 recommend that Plaintiff be permitted to engage in discovery, prior to issuance of a discovery and 28 scheduling order, for the limited purpose of determining the identity of Defendant John Doe #1, 1 | so that he may be served. 2 Accordingly, it is hereby RECOMMENDED: 3 1. This action proceed only on Plaintiffs First Amendment retaliation claims against 4 | Defendants Baeza and Gutierrez, Eighth Amendment Failure to Protect claims against Defendants 5 | Baeza, Gutierrez, Valencia-Mendoza, John Doe #1, Parra, and Vang, and conspiracy claims 6 | against Defendants Baeza and Gutierrez. 7 2. Defendant McDuffy and the remaining claims be dismissed from this action based 8 | on Plaintiffs failure to state claims upon which relief may be granted. 9 3. Plaintiff be permitted to engage in discovery, prior to issuance of a discovery and 10 | scheduling order, for the limited purpose of identifying Defendant John Doe #1. 11 NOTICE TO PARTIES 12 These findings and recommendations will be submitted to the United States district judge 13 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 14 | days after being served with these findings and recommendations, a party may file written 15 | objections with the court. The document should be captioned “Objections to Magistrate Judge’s 16 | Findings and Recommendations.” Parties are advised that failure to file objections within the 17 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 18 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 Dated: _ December 22, 2023 law ZA. foareh Zackte 21 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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