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6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8

9 TYQUAN FOSTER, 1:23-cv-01779-EPG (PC) 10 ORDER TO ASSIGN A DISTRICT JUDGE 11 Plaintiff, AND 12 v. FINDINGS AND RECOMMENDATIONS, 13 RECOMMENDING THAT THIS ACTION BE T. CAMPBELL, DISMISSED FOR FAILURE TO STATE A 14 CLAIM Defendant. 15 (ECF No. 14)

16 OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS 17

18 Plaintiff Tyquan Foster is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action filed pursuant to

. Plaintiff filed the complaint 20 commencing this action on December 18, 2023. (ECF No. 1). Plaintiff alleged in his original 21 complaint that while incarcerated at Corcoran State Prison (CSP), prison officials agreed to 22 replace property that was stolen, but they have not yet done so. The Court screened the 23 complaint on May 1, 2024, finding that Plaintiff did not state any cognizable claims, providing 24 relevant legal standards, and giving Plaintiff leave to amend. (ECF No. 12). Plaintiff then filed 25 a First Amended Complaint (FAC) on June 3, 2024. (ECF No. 14). Plaintiff appears to claim 26 that certain officers retaliated against him by filing a false rules violation report and that his due 27 process rights were violated. For the reasons discussed below the Court recommends that this 28 action be dismissed. 1 I. SCREENING REQUIREMENT 2 The Court is required to screen complaints brought by prisoners seeking relief against a 3 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 4 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 5 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 6 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 7 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 10), the Court may 8 also screen the complaint under

. “Notwithstanding any filing fee, or any 9 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 10 determines that the action or appeal fails to state a claim upon which relief may be granted.” 28

(e)(2)(B)(ii). 12 II. PLAINTIFF’S INITIAL COMPLAINT AND SCREENING ORDER 13 Plaintiff initiated this action by filing a complaint on December 18, 2023. (ECF No. 1). 14 In that initial complaint, Plaintiff stated that the violation of his rights occurred at Corcoran 15 State Prison (CSP), but named a dining worker at Kern Valley State Prison (KVSP) as a sole 16 defendant.1 (ECF No. 1 at 1, 2). Plaintiff alleged one claim, which he labeled as a “double 17 jeperdy [sic], pain and suffering, false paper work, cruel and unusual punishment” claim. (Id. at 18 3). In support of that claim, Plaintiff alleged as follows: 19 10/19/23 602 Log #451295 was granted for my lost canteen that the floor officer let get stolen but I still haven’t got payed and at this time jail 20 officers that’s stated in that 602 log number are in trouble. 21 10/6/23 602 Log # 416596 was granted to replace my lost and broken 22 property that officer Garcia messed up and I still haven’t gotin anything replaced. 23 10/28/23 Log #419739 was granted after being looked over by reviewing 24 authority H. Moseley that works for Office of Appeals where I proved Lt. 25 26 1 While in the “Defendants” section of the complaint Plaintiff named as a sole defendant “Tyquan Foster,” a dining worker at KVSP, Tyquan Foster is Plaintiff’s name. (ECF No. 1 at 2). In the 27 caption of the complaint, Plaintiff named “T. Campbell” as a defendant. (ECF No. 1 at 1). In FAC, 28 Plaintiff names “T. Campbell” as a sole defendant, but identifies that defendant as the Warden of CSP, not a dining worker. (ECF No. 14 at 3). Aranda Sgt. Garza Sgt. J. Cabrera Lt. R. Roque, Pederson, Barrajas, 1 Mackland, Mova, R.Vargas, and all of 2nd shift in ASU retaliated on me 2 after getting falsely charged with lots of charges. I am also on a 180 yard 3 at this time because of a lie and a false charge time was also givin to me for nothing. 4 (ECF No. 1 at 3). 5 The Court screened the complaint on May 1, 2024. (ECF No. 12). The Court reviewed 6 relevant legal standards under the Due Process clause for deprivation of property and explained 7 that Plaintiff’s allegation of lost property failed to state a cognizable claim, as follows: 8 Plaintiff’s complaint does not state a constitutional claim based on the 9 standards above. Although there are very few facts in the complaint, it 10 appears that one officer allowed some property to get stolen, and another officer “messed up” other property. (ECF No. 1 at 3). These allegations 11 appear to claim that officers acted negligently in a way that caused 12 Plaintiff’s property to be lost, broken, or stolen. Plaintiff does not allege facts showing that officers acted intentionally to cause Plaintiff to lose his 13 property. These allegations thus do not state a constitutional claim. 14 Even if Plaintiff is alleging that officers intentionally caused him to lose 15 property, that would also not state a constitutional claim because Plaintiff has a post-deprivation remedy for the property under California law. 16 Plaintiff does not claim that his property was lost because of an 17 established state procedure. 18 Finally, Plaintiff’s allegations that the prison agreed to give him property during the grievance process but failed to do so (ECF No. 1 at 3), do not 19 state a constitutional claim. Violations of prisons internal rules do not state 20 a violation of the constitution. 21 (ECF No. 12 at 5). 22 The Court then addressed Plaintiff’s other potential claims, including the claim that he 23 was falsely charged and certain staff members retaliated against him. The Court explained the 24 requirement of providing “a short and plain statement of the claim showing that the pleader is 25 entitled to relief.” Fed. R. Civ. P. 8(a)(2), and explained that “Plaintiff’s complaint does not 26 contain enough facts to satisfy this requirement. Plaintiff does not provide any details or factual 27 allegations supporting these claims. Plaintiff’s conclusory statements alone are not sufficient to 28 state a cognizable claim.” (ECF No. 12 at 5–6). The Court then provided relevant legal 1 standards including procedural due process for disciplinary proceedings and retaliation, and 2 gave Plaintiff leave to amend his complaint. (Id. at 6–8). 3 III. SUMMARY OF PLAINTIFF’S FIRST AMENDED COMPLAINT 4 In his FAC, Plaintiff names T. Campbell, Warden at CSP, as the sole Defendant (ECF 5 No. 14 at 3), and alleges as follows: 6 10/23/23 Log # 419739 was granted after being looked over by reviewing authority H. Mosely that works for Office of Appeals where I proved 7 Lt. Aranda Sgt. Garza Sgt. J. Cabrera Lt. R. Roque, Pederson, Barrajas, 8 Mackland, Mova, R. Vargas, and all of 2nd shift in ASU retaliated on me after getting falsely charged with first battery on peace officer then a false 9 115 I was givin by Pederson that Lt. R. Roque and Sgt J. Cabrera staged In 10 my C-file with no AVSS to back the Pederson complaint. I am not on a 11 180 yard because of those lies with extra time on my record for nothing. 12 . . . for a peace officer who Is givin that job to do what was did to me that was 13 cruel because they thought It would go unnoticed but the OOA hade to 14 step In, for long as this lie went on when It should have been corrected In 15 the first place because I did nothing In all cases and I was done bad for sure that’s retaliation It shouldn’t got that far I was truthful In all areas 16 plus AVSS can back all my claim’s 17 . . . 18 Due to me getting a 115 In the first place I have all right’s to be givin fair 19 due process the fact that all right In this case was violated some thing should be done to fix this matter I am human just like every one else 20 (ECF No. 14 at 1, 4–5). 21 IV. ANALYSIS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 22 A. Section 1983 23 The Civil Rights Act under which this action was filed provides: 24 Every person who, under color of any statute, ordinance, regulation, 25 custom, or usage, of any State or Territory or the District of Columbia, 26 subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, 27 privileges, or immunities secured by the Constitution and laws, shall be 28 liable to the party injured in an action at law, suit in equity, or other proper 1 proceeding for redress . . . . 2

. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 3 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 4

, 393–94 (1989) (quoting Baker v. McCollan,

, 144 n.3 (1979)); see 5 also Chapman v. Houston Welfare Rights Org.,

(1979); Hall v. City of Los 6 Angeles,

(9th Cir. 2012); Crowley v. Nevada,

, 734 (9th Cir. 7 2012); Anderson v. Warner,

(9th Cir. 2006). 8 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 9 under color of state law, and (2) the defendant deprived him of rights secured by the 10 Constitution or federal law. Long v. County of Los Angeles,

(9th Cir. 11 2006); see also Marsh v. County of San Diego,

(9th Cir. 2012) (discussing 12 “under color of state law”). A person deprives another of a constitutional right, “within the 13 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 14 omits to perform an act which he is legally required to do that causes the deprivation of which 15 complaint is made.’” Preschooler II v. Clark County Sch. Bd. of Trs.,

, 1183 (9th 16 Cir. 2007) (quoting Johnson v. Duffy,

(9th Cir. 1978)). “The requisite causal 17 connection may be established when an official sets in motion a ‘series of acts by others which 18 the actor knows or reasonably should know would cause others to inflict’ constitutional harms.” 19 Preschooler II, 479 F.3d at 1183 (quoting Johnson,

). This standard of 20 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 21 Arnold v. Int’l Bus. Mach. Corp.,

(9th Cir. 1981); see also Harper v. City 22 of Los Angeles,

(9th Cir. 2008). 23 A plaintiff must demonstrate that each named defendant personally participated in the 24 deprivation of his rights. Iqbal, 556 U.S. at 676–77. In other words, there must be an actual 25 connection or link between the actions of the defendants and the deprivation alleged to have 26 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y.,

, 27 691, 695 (1978). 28 1 Supervisory personnel are not liable under section 1983 for the actions of their 2 employees under a theory of respondeat superior and, therefore, when a named defendant 3 holds a supervisory position, the causal link between the supervisory defendant and the claimed 4 constitutional violation must be specifically alleged. Iqbal, 556 U.S. at 676–77; Fayle v. 5 Stapley,

(9th Cir. 1979); Mosher v. Saalfeld,

(9th Cir. 6 1978). To state a claim for relief under section 1983 based on a theory of supervisory liability, 7 a plaintiff must allege some facts that would support a claim that the supervisory defendants 8 either: were personally involved in the alleged deprivation of constitutional rights, Hansen v.

F.2d 642, 646 (9th Cir. 1989); “knew of the violations and failed to act to prevent 10 them,” Taylor v. List,

(9th Cir. 1989); or promulgated or “implement[ed] a 11 policy so deficient that the policy itself is a repudiation of constitutional rights and is the 12 moving force of the constitutional violation,” Hansen, 885 F.2d at 646 (citations and internal 13 quotation marks omitted). 14 For instance, a supervisor may be liable for his or her “own culpable action or inaction 15 in the training, supervision, or control of his [or her] subordinates,” “his [or her] acquiescence 16 in the constitutional deprivations of which the complaint is made,” or “conduct that showed a 17 reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles,

630, 646 (9th Cir. 1991) (citations, internal quotation marks, and brackets omitted). 19 B. Federal Rule of Civil Procedure 8(a) 20 As set forth above and as the Court advised Plaintiff in the initial screening order (ECF 21 No. 12 at 5–6), Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint to 22 contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” 23 Fed. R. Civ. P. 8(a)(2). Although a complaint is not required to include detailed factual 24 allegations, it must set forth “sufficient factual matter, accepted as true, to ‘state a claim to 25 relief that is plausible on its face.’” Iqbal, 556 U.S. at 678. And Plaintiff must demonstrate that 26 each named defendant personally participated in the deprivation of his rights. Id. at 676–77. 27 The Court once again finds that Plaintiff fails to comply with Rule 8(a). In its previous 28 screening order, the Court found as follows: Plaintiff’s complaint also very briefly states that he was “falsely charged 1 with a lot of charges,” and that certain staff members retaliated against 2 him. (ECF No. 1 at 3). . . . Plaintiff’s complaint does not contain enough 3 facts to satisfy [Rule 8(a)(2)] requirement. Plaintiff does not provide any details or factual allegations supporting these claims. Plaintiff’s 4 conclusory statements alone are not sufficient to state a cognizable claim. 5 (ECF No. 12 at 5–6). 6 Plaintiff’s allegations regarding retaliation in the First Amended Complaint are virtually 7 identical to the conclusory allegations in his original complaint. While Plaintiff adds another 8 paragraph under the description of what he labels a retaliation claim, it amounts to a statement 9 that he was falsely accused and that he was being truthful. (ECF No. 14 at 1, 4–5) (“It should 10 have been corrected In the first place because I did nothing In all cases and I was done bad for 11 sure that’s retaliation It shouldn’t got that far I was truthful.”). 12 As the Court informed Plaintiff in its initial screening order (ECF No. 12 at 7), there are 13 five basic elements to a First Amendment retaliation claim: “(1) An assertion that a state actor 14 took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, 15 and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the 16 action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408

, 567–68 (9th Cir. 2005) (footnote omitted). 18 Plaintiff’s allegations in his First Amended Complaint are insufficient to show that 19 prison officials retaliated against him. While Plaintiff alleges that he was falsely charged, he 20 failed to allege that this action was taken because he engaged in some protected conduct. 21 Plaintiff failed to identify anything he did that might qualify as protected conduct. Plaintiff also 22 failed to allege that the action chilled the exercise of his First Amendment rights. 23 In addition, the Court previously informed Plaintiff that he “must demonstrate that each 24 named defendant personally participated in the deprivation of his rights.” (ECF No. 12 at 4). 25 However, Plaintiff once again does not provide any allegations regarding how the named 26 defendant, CSP Warden Campbell, violated his constitutional rights. Plaintiff does not allege 27 that the Warden was personally involved in the alleged deprivation, knew of the violations and 28 failed to act to prevent them, or promulgated or implemented “a policy so deficient that the 1 policy itself is a repudiation of constitutional rights and is the moving force of the 2 constitutional violation.” Hansen, 885 F.2d at 646 (citations and internal quotation marks 3 omitted). Therefore, Plaintiff failed to establish a connection or link between the actions of any 4 defendant and the alleged deprivation of his constitutional rights. Monell,

. 5 Likewise, Plaintiff’s allegation that his due process rights were violated (ECF No. 14 at 6 5) is merely conclusory; he does not provide any facts to support this claim. As with his 7 retaliation claim, Plaintiff does not describe what any defendant did or failed to do and how it 8 violated his constitutional rights. He does not link the sole named defendant to the alleged 9 deprivation of his constitutional rights. 10 Plaintiff’s lack of detail is especially concerning because the Court found in its initial 11 screening order that, to the extent it could understand Plaintiff’s claims based on officers losing 12 or damaging his property, those allegations failed to state a claim under relevant law. Plaintiff’s 13 First Amended Complaint contains even fewer details, but to the extent it is based on similar 14 allegations from the first complaint, it would not state a constitutional claim. 15 Accordingly, the Court finds that Plaintiff’s complaint once again fails to comply with 16 Rule 8(a) and fails to state any cognizable claims. Plaintiff’s complaint is subject to dismissal 17 on this basis. See McHenry v. Renne,

(9th Cir. 1996) (affirming dismissal 18 of § 1983 complaint for violation of Rule 8 after warning, where the district court was “literally 19 guessing as to what facts support the legal claims being asserted against certain defendants”). 20 V. CONCLUSION AND ORDER 21 The Court recommends that this action be dismissed, without granting Plaintiff further 22 leave to amend. In the Court’s prior screening order, the Court identified the deficiencies in 23 Plaintiff’s complaint, provided Plaintiff with relevant legal standards, and provided Plaintiff 24 with an opportunity to amend his complaint. Plaintiff filed his First Amended Complaint with 25 the benefit of the Court’s screening order, but failed to cure the deficiencies identified by the 26 Court. Thus, it appears that further leave to amend would be futile. 27 Accordingly, IT IS ORDERED that the Clerk of Court shall assign a District Judge to 28 this case. 1 Additionally, IT IS RECOMMENDED as follows: 2 1. This action be dismissed with prejudice for failure to state any cognizable 3 claims. 4 2. The Clerk of Court be directed to close this case. 5 These findings and recommendations are submitted to the United States district judge 6 || assigned to the case, pursuant to the provisions of Title

(b)(1). Within thirty 7 || (30) days after being served with these findings and recommendations, Plaintiff may file 8 || written objections with the Court. Such a document should be captioned “Objections to 9 || Magistrate Judge’s Findings and Recommendations.” 10 Plaintiff is advised that failure to file objections within the specified time may result in 11 || the waiver of rights on appeal. Wilkerson v. Wheeler,

(9th Cir. 2014) 12 || (citing Baxter v. Sullivan,

(9th Cir. 1991)). 13 14 IT IS SO ORDERED. 'S ll Dated: _ June 27, 2024 [see hey 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28

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