1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DWIGHT M. DeBOSE, No. 2:23-cv-00131-KJM-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 THIRD WATCH COMMANDER, 15 Defendant. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under

. The matter was referred to a United States Magistrate Judge as provided 19 by

(b)(1)(B) and Local Rule 302. 20 On February 16, 2023, the magistrate judge filed findings and recommendations, which 21 were served on plaintiff and which contained notice to plaintiff that any objections to the findings 22 and recommendations were to be filed within fourteen days. Plaintiff has filed objections to the 23 findings and recommendations. 24 In accordance with the provisions of

(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 26 findings and recommendations mostly to be supported by the record and by the proper analysis, 27 except for its analysis of leave to amend. Although plaintiff objects to the magistrate judge’s 28 conclusion, he does not raise any arguments in support of his position other than those addressed 1 by the findings and recommendations. He does not contend the PREA creates a private cause of 2 action, nor point to a constitutionally protected interest he was deprived of without sufficient 3 process. In non-legal language, this means the laws plaintiff cites do not allow him to bring a 4 lawsuit based on the facts he alleges. As a result, his complaint must be dismissed. 5 However, the court disagrees with the magistrate judge’s conclusion that amendment 6 necessarily would be futile. To be sure, plaintiff does not claim he is a victim of a sex act by a 7 correctional officer or that a correctional officer failed to protect him from a sex act, as would be 8 required for an Eighth Amendment claim. See Reed v. Racklin, No. 17-0799,

, 9 at *2 (E.D. Cal. June 12, 2017) (permitting an Eighth Amendment claim to proceed after 10 screening, while dismissing PREA claim); see generally Schwenk v. Hartford,

, 11 1196–97 (9th Cir. 2000) (summarizing caselaw on Eighth Amendment liability for sexual 12 assault). The magistrate judge appears to recommend dismissing the complaint without leave to 13 amend on this basis. See Findings and Recommendations at 4. However, the court cannot rule 14 out the possibility plaintiff could allege prison officials have discriminated against him on the 15 basis of sex in violation of the Equal Protection Clause of the Fourteenth Amendment. See, e.g., 16 Compl. at 4–5, ECF No. 1 (alleging prison officials decided not to order rape kit for plaintiff); 17 Slice v. Schweitzer, No. 07-04-H,

, at *7 (D. Mont. June 5, 2008) (permitting 18 after screening prisoner sex discrimination claim that prisons treated male and female inmates 19 differently). For this reason, the court grants leave to amend. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. The Findings and Recommendations filed February 16, 2023, are adopted with respect 22 to dismissing the complaint; 23 2. The courts grants leave to amend; 24 3. Plaintiff’s amended complaint must be filed within thirty days; and 25 4. The case is referred back to the magistrate judge for further pretrial proceedings. 26 DATED: August 29, 2023. 27 28