(PC) Shannon v. CDCR

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA MYCHAEL TYRONE SHANNON, No. 2:17-cv-01084-DAD-DMC (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART AND CALIFORNIA DEPARTMENT OF GRANTING IN PART AND DENYING IN CORRECTIONS AND PART DEFENDANTS’ MOTION TO REHABILITATION, et al., DISMISS PLAINTIFF’S THIRD AMENDED COMPLAINT 16 Defendants. (Doc. Nos. 78, 83) 19 Plaintiff Mychael Tyrone Shannon is a state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

22 On February 21, 2024, the assigned magistrate judge issued findings and recommendations recommending that defendants’ motion to dismiss plaintiff’s third amended complaint (Doc. No. 78) be granted and that this action be dismissed without leave to amend.

25 (Doc. No. 83.) Specifically, the magistrate judge concluded that plaintiff had failed to sufficiently allege supervisory liability on the part of defendant Diaz, that all the named defendants are entitled to qualified immunity, and that the action should therefore be dismissed without leave to amend. (Id. at 4–10.)

1 Those findings and recommendations were served on the parties and contained notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 10.) No party has filed any objections, and the time to do so has passed.

4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, the court has conducted a de novo review of the case. Having carefully reviewed the entire file, the undersigned will adopt the pending findings and recommendations, in part. For the reasons explained below, the undersigned will decline to adopt the recommendation that the action be dismissed without leave to amend. As to plaintiff’s § 1983 claim seeking damages, the undersigned will adopt the recommendations that defendants are entitled to qualified immunity and that the claim must be dismissed to the extent that plaintiff seeks damages.1 11 In plaintiff’s operative third amended complaint (“TAC”), he alleges that defendants permit female inmates to purchase and own alarm clocks but deny male inmates the opportunity to do so in violation of the Equal Protection Clause of the Fourteenth Amendment. (See Doc.

14 No. 66 at ¶¶ 6–17.) Plaintiff expressly seeks injunctive relief requiring defendants to permit both male and female inmates to purchase alarm clocks. (Id. at ¶¶ 18–20, 24.) The pending findings and recommendations do not address plaintiff’s request for injunctive relief. See Demers v. Austin, 746 F.3d 402, 417 (9th Cir. 2014) (“Qualified immunity of course does not preclude injunctive relief.”). In their pending motion to dismiss, defendants argue that “this court should avoid the constitutional question and proceed directly to prong two of the qualified immunity analysis, which is whether defendants violated clearly established law.” (Doc. No. 78-1 at 9.)

21 Because injunctive relief here requires consideration of the constitutional question, i.e., whether defendants’ alleged refusal to allow male inmates to purchase alarm clocks is gender discrimination in violation of the Fourteenth Amendment, defendants have not challenged plaintiff’s § 1983 claim to the extent plaintiff seeks injunctive relief.2 The court will therefore 1 Because the undersigned will adopt the recommendations in this regard, the undersigned will not consider defendants’ remaining arguments as to why plaintiff’s § 1983 claim seeking damages must be dismissed.

2 Nor have defendants provided any argument as to why plaintiff’s § 1983 claim seeking injunctive relief should be dismissed.

1 | decline to adopt the recommendation that the entire action be dismissed without leave to amend.

2 CONCLUSION 3 Accordingly, 4 1. The pending findings and recommendations issued on February 21, 2024 (Doc.

5 No. 83) are adopted in part, as follows: 6 a. Defendants’ motion to dismiss plaintiffs third amended complaint (Doc.

7 No. 78) is granted in part and denied in part as follows: 8 1. Defendants’ motion to dismiss plaintiffs § 1983 claim seeking 9 damages is granted; 10 il. Defendants’ motion to dismiss plaintiffs § 1983 claim seeking 11 injunctive relief is denied; 12 2. This action is referred back to the assigned magistrate judge for further 13 proceedings.

14 IT IS SO ORDERED. | Dated: _Mareh 9, 2024 Da A. 2, ye 16 DALE A. DROZD UNITED STATES DISTRICT JUDGE