1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEYTHAN MICHAEL JONES SLAISE, Case No. 1:23-cv-00650-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION TO

DISMISS CASE1

14 NICOLE A. SILVEIRA and VERNON H. WARNKE, (Doc. No. 7) 15 Defendants. FOURTEEN-DAY OBJECTION PERIOD 16

17 18 Pending before the Court for screening under 28 U.S.C. § 1915A is Plaintiff’s First 19 Amended Complaint. (Doc. No. 7). For the reasons set forth below, the undersigned 20 recommends that the district court dismiss this action because the First Amended Complaint fails 21 to state any cognizable constitutional claim and any further amendments would be futile. 22 SCREENING REQUIREMENT 23 Plaintiff commenced this action while in prison and thus is subject to the Prison Litigation 24 Reform Act (“PLRA”), which requires, inter alia, the court to screen any complaint that seeks 25 relief against a governmental entity, its officers, or its employees before directing service upon 26 any defendant. 28 U.S.C. § 1915A. This requires the Court to identify any cognizable claims and 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. §636(b)(1)(B) and Eastern District of 28 California Local Rule 302 (E.D. Cal. 2022). 1 dismiss the complaint, or any portion, if is frivolous or malicious, that fails to state a claim upon 2 which relief may be granted, or that seeks monetary relief from a defendant who is immune from 3 such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 4 At the screening stage, the Court accepts the factual allegations in the complaint as true, 5 construes the complaint liberally, and resolves all doubts in the Plaintiff’s favor. Jenkins v. 6 McKeithen, 395 U.S. 411, 421 (1969); Bernhardt v. L.A. County, 339 F.3d 920, 925 (9th Cir. 7 2003). A court does not have to accept as true conclusory allegations, unreasonable inferences, or 8 unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 9 1981). Critical to evaluating a constitutional claim is whether it has an arguable legal and factual 10 basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227. 11 The Federal Rules of Civil Procedure require only that the complaint include “a short and 12 plain statement of the claim showing the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). 13 Nonetheless, a claim must be facially plausible to survive screening. This requires sufficient 14 factual detail to allow the court to reasonably infer that each named defendant is liable for the 15 misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Moss v. U.S. Secret Service, 16 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not 17 sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. 18 Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. Although detailed factual allegations are not 19 required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 20 statements, do not suffice,” Iqbal, 556 U.S. at 678 (citations omitted), and courts “are not required 21 to indulge unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 22 2009) (internal quotation marks and citation omitted). 23 The Rules permit a complaint to include all related claims against a party and permit 24 joinder of all defendants alleged to be liable for the “same transaction, occurrence, or series of 25 transactions or occurrences” where “any question of law or fact common to all defendants will 26 arise in the action.” Fed. R. Civ. P. 18(a) and 20(a)(2) (emphasis added). But the Rules prohibit 27 conglomeration of unrelated claims against unrelated defendants in a single lawsuit. A litigant 28 must file unrelated claims in separate lawsuits. 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 BACKGROUND AND SUMMARY OF OPERATIVE PLEADING 9 Plaintiff, a state prisoner proceeding pro se, initiated this action by filing a civil rights 10 complaint under 42 U.S.C. § 1983 on April 28, 2023. (Doc. No. 1). On August 10, 2023, the 11 undersigned screened Plaintiff’s Complaint and found it failed to state any cognizable claim. (See 12 Doc. No. 6). Plaintiff was afforded the opportunity to file an amended complaint, which he 13 timely filed on September 8, 2023. (Doc. No. 7. “FAC”). 14 The events giving rise to the FAC occurred in Merced County. (See generally id.). The 15 FAC names two Defendants: (1) Merced County District Attorney Nicole Silveira and (2) Merced 16 County Sheriff Vernon Warnke. (Id. at 2-3). Plaintiff’s FAC consists of two claims. Liberally 17 construed, the first claim asserts a violation of the Fourteenth Amendment Equal Protection 18 Clause and California’s Racial Justice Act (Cal. Penal Code §§ 745, 1473) alleging that Plaintiff 19 and two other identified African American defendants were convicted in state criminal 20 proceedings based on “perjured evidence,” and prosecuted because of their race as “Black-Negro 21 Native Americans.” (Id. at 3-4). Specifically, Plaintiff claims that a particular prosecutor, not 22 named as a defendant in this suit, “acted as a ‘complaining witness’ by certifying that the facts 23 alleged within an affidavit . . . were true, as she was functioning more like a witness than a 24 prosecutor.” (Id. at 4). To the extent discernible, the FAC also asserts a Monell2 claim alleging 25 that the District Attorney’s office exhibited deliberate indifference by failing to train its 26 employees. (Id.). 27

28 2 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). 1 In a second claim, the Plaintiff asserts a violation of the Eighth Amendment based on 2 water quality violations and other public health issues at two Merced County correctional 3 facilities—the Merced County Sheriff’s Office Main Detention Center (“MDC”) and the John 4 Latorraca Correctional Center (“JLCC”)—dating from the late 1990s to the late 2000s. (Id. at 4). 5 As relief, Plaintiff seeks punitive, exemplary, and compensatory damages, as well as 6 temporary and permanent injunctive relief against “these officals [sic], representatives, 7 successors, predecessors, and Associates in-fact until the full and complete adjudication of 42 8 U.S.C. 1983 [sic] . . .” (Id. at 5). 9 APPLICABLE LAW AND ANALYSIS 10 A. Rule 8 11 To be plausible, a complaint must provide sufficient factual detail for the Court to infer 12 that each Defendant is liable for the alleged constitutional violations. Iqbal, 556 U.S. at 678; 13 Moss, 572 F.3d at 969. A court does not have to accept as true conclusory allegations, 14 unreasonable inferences, or unwarranted deductions of fact. Western Mining Council, 643 F.2d at 15 624. Here, although Plaintiff's FAC is relatively short, it is not a plain statement of his claims. 16 As a basic matter, the FAC does not clearly state what happened, when it happened or who was 17 involved. Plaintiff's allegations must be based on factual allegations as to what happened and not 18 conclusory allegations, such as claiming that “state officials are seeking a criminal conviction or 19 sentence on the basis of [Plaintiff and others] being of the Black/African American race, 20 ethnicity, or national origin.” (Doc. No. 7 at 3-4). 21 Further, in addition to being conclusory, Plaintiff’s allegations are disjointed and cryptic. 22 Because he does not state any facts or connect any alleged claims or acts of wrongdoing to any 23 listed Defendant, neither named Defendant could be reasonably expected to understand from the 24 FAC how he or she is alleged to have violated Plaintiff’s rights. Swierkiewicz v. Sorema N.A., 25 534 U.S. 506, 512 (2002) (observing that the purpose of the complaint is to “give the defendant 26 fair notice of what the plaintiff’s claim is and the grounds upon which it rests”) (internal 27 quotation marks and citations omitted). Just listing a name in the caption of a complaint and 28 alleging a constitutional violation in the body of the complaint is not enough to articulate a claim 1 under § 1983. 2 Because Plaintiff’s FAC fails to set forth in short and plain statements facts plausibly 3 entitling him to relief, it violates Rule 8 and thus fails to state a claim. 4 B. Related Claims and Joinder 5 The Rules permit a complaint to include all related claims against a party and permit 6 joinder of all defendants alleged to be liable for the “same transaction, occurrence, or series of 7 transactions or occurrences” where “any question of law or fact common to all defendants will 8 arise in the action.” Fed. R. Civ. P. 18(a) and 20(a)(2) (emphasis added). But the Rules do not 9 permit conglomeration of unrelated claims against unrelated defendants in a single lawsuit. 10 Unrelated claims must be filed in separate lawsuits. 11 The controlling principle appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim to relief as an original claim, counterclaim, cross- 12 claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as 13 the party has against an opposing party.’ Thus multiple claims against a single party are fine, but Claim A against Defendant 1 14 should not be joined with unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in different 15 suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners 16 pay the required filing fees-for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner 17 may file without prepayment of the required fees. 28 U.S.C. § 1915(g). 18 19 K’napp v. California Dept. of Corrections, 2013 WL 5817765, at *2 (E.D. Cal., Oct. 29, 2013), 20 aff’d sub nom. K’napp v. California Dept. of Corrections & Rehabilitation, 599 Fed. Appx. 791 21 (9th Cir. 2015) (alteration in original) (quoting George v. Smith, 507 F.3d 605, 607 (7th Cir. 22 2007). 23 Here, the FAC asserts two entirely disparate claims: one related to Plaintiff’s criminal 24 prosecution and/or conviction, which occurred on an unspecified date; and another based on 25 health violations at two Merced County correctional facilities spanning from the late 1990s to late 26 2000s. There are no facts alleging a connection between these events and no overlap in the 27 individuals alleged to be involved. Independently, the Court cannot conceive under any scenario 28 how these two claims could arise out of the same transaction, occurrence, or series of transactions 1 or occurrences to be joined in a single action. The Court finds it would be futile to direct Plaintiff 2 to file a second amended complaint to choose on which claim to proceed, because as set forth 3 herein, neither cause of action states a cognizable federal claim. 4 C. Section 1983 Action Improper to Challenge Plaintiff’s State Criminal Case 5 As to his first, claim, Plaintiff claims he and the two other identified African-American 6 men are being prosecuted solely on the basis of their race; and, the prosecutor in Plaintiff’s case, 7 who is not named as a defendant, violated his constitutional rights by acting as a “complaining 8 witness” in certifying to certain facts in the state’s opposition to defense’s motion to set aside an 9 information. (Doc. No. 7 at 3-4). Liberally construed, Plaintiff appears to allege a Fourteenth 10 Amendment claim for racial discrimination against Merced County District Attorney Nicole 11 Silveira. 12 At the outset, it is not entirely clear whether Plaintiff has been convicted in his underlying 13 criminal action or if it remains pending. Nonetheless, Plaintiff’s first claim against Defendant 14 Silveira is not cognizable. 15 First, Plaintiff’s claim against Defendant Silveira fails because prosecutors have immunity 16 from liability under § 1983 when engaging in activities “intimately associated with the judicial 17 phase of the criminal process,” such as initiating a prosecution. Imbler v. Pachtman, 424 U.S. 18 409, 430–31 (1976). Thus, regardless, of the reasons “for initiating a prosecution and in 19 presenting the State’s case, the prosecutor is immune from a civil suit for damages under § 1983.” 20 Id. at 431; Cousins v. Lockyer, 568 F.3d 1063, 1068 (9th Cir. 2009); see also Lacey v. Maricopa 21 Cnty., 693 F.3d 896, 912 (9th Cir.2012) (“Prosecutors performing their official prosecutorial 22 functions are entitled to absolute immunity against constitutional torts.”); Holland v. Cnty. of 23 Macomb, 2017 WL 3391653, at *2 (6th Cir. Mar. 17, 2017) (finding plaintiff’s claims of 24 malicious prosecution and racial discrimination barred by prosecutorial immunity). 25 Further, a claim of racial discrimination under the Equal Protection clause requires a 26 showing of discriminatory intent. Washington v. Davis, 426 U.S. 229, 239-40 (1976). “To 27 prevail on an Equal Protection claim brought under § 1983, Plaintiff must allege facts plausibly 28 showing that ‘the defendants acted with an intent or purpose to discriminate against [them] based 1 upon membership in a protected class,’ (citing see Thornton v. City of St. Helens, 425 F.3d 1158, 2 1166 (9th Cir. 2005)) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001)), or 3 that similarly situated individuals were intentionally treated differently without a rational 4 relationship to a legitimate state purpose.” Engquist v. Oregon Department of Agr., 553 U.S. 591, 5 601-02, 128 S.Ct. 2146 (2008). Here, the FAC is wholly devoid of any factual basis to support 6 Plaintiff’s claim of racial discrimination. 7 Second, to the extent Plaintiff has been convicted, any claim that the prosecutor certified 8 statements of fact that were not true, even if attributable to Defendant Silveira,3 such claims are 9 barred by the favorable termination requirement set forth in Heck v. Humphrey, 512 U.S. 477 10 (1994). To be able to recover damages for an allegedly unconstitutional conviction or other harm 11 caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 12 plaintiff must prove that his “conviction or sentence has been [1] reversed on direct appeal, [2] 13 expunged by executive order, [3] declared invalid by a state tribunal authorized to make such 14 determination, or [4] called into question by a federal court’s issuance of a writ of habeas corpus. 15 Id. at 486–87, (footnote omitted). 16 Alternatively, to the extent Plaintiff is attempting to assert a claim for malicious 17 prosecution, Plaintiff’s claim fares no better. The Ninth Circuit has held such a claim is not 18 generally cognizable under § 1983 if a process is available within the state judicial system to 19 provide a remedy. Usher v. City of Los Angeles, 828 F.3d 556, 561 (9th Cir. 1987). An 20 exception does exist if “a malicious prosecution is conducted with the intent to deprive a person 21 of equal protection of the laws or is otherwise intended to subject a person to denial of 22 constitutional rights.” Id. (citations omitted). However, a plaintiff must also show that the prior 23 criminal proceeding was commenced by or at the direction of a defendant and was: (1) legally 24 terminated in plaintiff’s favor; 2) commenced without probable cause; and 3) initiated with 25 malice. Ayala v. Environmental Health, 426 F.Supp.2d 1070, 1083 (E.D. Cal. 2006). Here, the 26 FAC contains no such averment of fact to support a malicious prosecution claim. 27 Finally, to the extent Plaintiff’s criminal case remains pending, federal courts cannot

28 3 The fact that Defendant Silveira cannot be held liable under respondeat superior is discussed infra. 1 interfere with pending state criminal proceedings, absent extraordinary circumstances which 2 create a threat of irreparable injury. Younger v. Harris, 401 U.S. 37, 45-46 (1971). Further, such 3 irreparable injury must be “both great and immediate.” Id. (quoting Fenner v. Boykin, 271 U.S. 4 240, 243-44 (1926)). Essentially, the Younger doctrine means that “‘only in the most unusual 5 circumstances is a defendant entitled to have federal interposition by way of injunction or habeas 6 corpus until after the jury comes in, judgment has been appealed from and the case concluded in 7 the state courts.’” Carden v. Montana, 626 F.2d 82, 83–84 (9th Cir.) (quoting Drury v. Cox, 457 8 F.2d 764, 764–65 (9th Cir.1972)), cert. denied, 449 U.S. 1014 (1980). Here, the FAC articulates 9 no reasons, yet alone extraordinary circumstances that Plaintiff will suffer a great, immediate, and 10 irreparable injury. 11 Thus, Plaintiff first cause of action challenging his prosecution fails to state a cognizable 12 claim and must be dismissed. 13 D. Eighth Amendment Conditions of Confinement 14 Plaintiff’s second claim generally alleges that two Merced County correctional facilities— 15 MDC and JLCC—were in violation of water quality laws and had other public violations from the 16 late 1990s to the late 2000s. (Doc. No. 7 at 4-5). It asserts that both facilities were infested with 17 black mold and that JLCC had elevated levels of arsenic in the drinking water. (Id.). The FAC 18 contains no factual allegation that either of the named Defendants were involved in these 19 violations, or that Plaintiff was held at either of these institutions, much less harmed by the health 20 violations. 21 “Standing to sue is a doctrine rooted in the traditional understanding of a case or 22 controversy.” Spokeo Inc. v. Robins, 578 U.S. 330, 338 (2016). To establish Article III standing, 23 three elements must be satisfied: a “plaintiff must have (1) suffered an injury in fact, (2) that is 24 fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed 25 by a favorable judicial decision.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 26 (1992)). The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing 27 these elements. Id. (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, (1990)). Where, as here, a 28 case is at the pleading stage, the plaintiff must “clearly . . . allege facts demonstrating” each 1 element. Id. (citing Warth v. Seldin, 422 U.S. 490, 518 (1975)). 2 Here, Plaintiff has not pled facts satisfying any of the elements of standing. As noted 3 above, there are no facts reflecting the involvement of Defendants Silveira and Warnke in the 4 alleged violations, much less that they were deliberately indifferent to a serious risk of harm to 5 Plaintiff. Nor does the FAC allege any facts showing that Plaintiff suffered an actual injury that 6 would confer standing to sue. Thus, because Plaintiff does not have standing to bring an Eighth 7 Amendment claim based on the health violations at MDC and JLCC, the FAC fails to state a 8 claim. 9 E. Supervisor Liability 10 Liability under section 1983 arises only upon a showing of personal participation by the 11 defendant. “There is no respondeat superior liability under section 1983.” Taylor v. List, 880 12 F.2d 1040, 1045 (9th Cir.1989) (citations omitted). A supervisor is only liable for constitutional 13 violations of his subordinates if the supervisor participated in or directed the violations or knew of 14 the violations and failed to act to prevent them. Id., see also Starr v. Baca,652 F.3d 1202, 1206– 15 07 (9th Cir. 2011). 16 Both named Defendants in this action are heads of their respective agencies, and there are 17 no facts in the FAC that reflect their personal involvement in, or knowledge of any alleged 18 constitutional violations. Without any facts reflecting that either Defendant participated in or 19 directed any constitutional violations, the FAC fails to state a claim against either Defendant. 20 Sasser v. Lizaragga, 2020 WL 6293146, at *4 (E.D. Cal. July 14, 2020), report and 21 recommendation adopted, 2020 WL 6286326 (E.D. Cal. Oct. 27, 2020) (citing Hansen v. Black, 22 885 F.2d 642, 646 (9th Cir. 1989). 23 F. Monell Claim 24 To state a Monell claim, Plaintiff must adequately allege an underlying constitutional 25 violation by a County employee. Scott v. Heinrich, 39 F.3d 912, 916 (9th Cir. 1994) (“municipal 26 defendants cannot be held liable because no constitutional violation occurred”); Lockett v. County 27 of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020) (“Monell claims . . . require a plaintiff to show 28 an underlying constitutional violation.”). Here, Merced County is not a named Defendant in this 1 action. And because, as set forth above, the Court finds no underlying violation has been 2 adequately pled, Plaintiff cannot state a Monell claim. 3 FINDINGS AND RECOMMENDATION 4 Based on the above, the undersigned finds Plaintiff’s FAC fails to state any cognizable 5 claim. The FAC suffers from many of the same pleading deficiencies that the undersigned 6 identified and explained to Plaintiff in screening his original Complaint. The Court previously 7 advised Plaintiff that he could not seek a reversal of his conviction in a § 1983 action, but 8 Plaintiff nevertheless realleged the same deficient claim. Plaintiff now asserts a new claim 9 without any facts connecting the alleged violations to either the Defendants or to Plaintiff. 10 Despite being provided with guidance and the appropriate legal standards, Plaintiff was unable to 11 cure the deficiencies identified above. The undersigned finds that any further leave to amend 12 would be futile. Thus, the undersigned recommends the district court dismiss the FAC without 13 further leave to amend. McKinney v. Baca, 250 F. App’x 781 (9th Cir. 2007) citing Ferdik v. 14 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (noting discretion to deny leave to amend is 15 particularly broad where court has afforded plaintiff one or more opportunities to amend his 16 complaint); see also Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (A district court can 17 deny leave “where the amendment would be futile . . . or where the amended complaint would be 18 subject to dismissal”). 19 Accordingly, it is hereby ORDERED: 20 The Clerk of Court randomly assign this case to a district judge for consideration of this 21 Findings and Recommendation. 22 It is further RECOMMENDED: 23 Plaintiff’s First Amended Complaint (Doc. No. 7) be dismissed under § 1915A for failure 24 to state a claim and this case be dismissed. 25 NOTICE TO PARTIES 26 These findings and recommendations will be submitted to the United States district judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 28 days after being served with these findings and recommendations, a party may file written 1 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 2 | Findings and Recommendations.” Parties are advised that failure to file objections within the 3 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 4 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 ° | Dated: _ January 5.2024 Mile. Th. Doareh Zacks 7 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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