1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SANJAY KUMAR, No. 2:24-cv-1772 CSK P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 J. SAUCEDO, et al., 15 Defendants. 16 17 I. INTRODUCTION 18 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 19 to

. Pending before the Court is plaintiff’s second amended complaint. (ECF 20 No. 13.) For the following reasons, this Court finds that the second amended complaint states 21 eleven potentially colorable claims for relief. This Court separately orders plaintiff to return the 22 forms necessary for service of those potentially colorable claims. For the following reasons, this 23 Court finds that ten claims raised in the second amended complaint are not potentially colorable 24 and recommends dismissal of those claims. 25 II. SCREENING STANDARDS 26 The court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 court must dismiss a complaint or portion thereof if the prisoner raised claims that are legally 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 3 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 4 Neitzke v. Williams,

(1989); Franklin v. Murphy,

(9th 5 Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an 6 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 7

. The critical inquiry is whether a constitutional claim, however inartfully 8 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona,

(9th 9 Cir. 1989), superseded by statute as stated in Lopez v. Smith,

(9th Cir. 10 2000) (“[A] judge may dismiss [in forma pauperis] claims which are based on indisputably 11 meritless legal theories or whose factual contentions are clearly baseless.”); Franklin,

1227. 13 Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain 14 statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the 15 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic 16 Corp. v. Twombly,

(2007) (quoting Conley v. Gibson,

(1957)). 17 In order to survive dismissal for failure to state a claim, a complaint must contain more than “a 18 formulaic recitation of the elements of a cause of action;” it must contain factual allegations 19 sufficient “to raise a right to relief above the speculative level.” Bell Atlantic,

. 20 However, “[s]pecific facts are not necessary; the statement [of facts] need only ‘give the 21 defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. 22 Pardus,

(2007) (quoting Bell Atlantic,

, citations and internal 23 quotations marks omitted). In reviewing a complaint under this standard, the court must accept as 24 true the allegations of the complaint in question, Erickson,

, and construe the 25 pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes,

, 236 26 (1974), overruled on other grounds, Davis v. Scherer,

(1984). 27 III. DISCUSSION 28 Named as defendants are J. Saucedo, Deputy Deo, Deputy M. Lee, Deputy Trost, Deputy 1 Xiong, Food Service Supervisor/Manager Johnson, Kitchen Officer Meyer, Nurse Randy, Nurse 2 Alex, Dr. Tseng, Control Tower Officer Ceries, Reception Intake Deputy Cuems and Lieutenant 3 Leahy. (ECF No. 13 at 2-3.) The alleged deprivations occurred at the Rio Consumnes 4 Correctional Center (“RCCC”). (Id. at 1.) Plaintiff appears to claim that he was a pretrial 5 detainee at the time of the alleged deprivations. (Id. at 4.) Plaintiff’s second amended complaint 6 contains three numbered claims for relief, with each numbered claim containing multiple claims. 7 A. Claim One 8 In claim one, plaintiff alleges violation of his First Amendment right to religious freedom, 9 unreasonable search and seizure in violation of the Fourth Amendment, excessive punishment in 10 violation of the Eighth Amendment, violation of the Fourteenth Amendment and violation of 11 plaintiff’s right to Equal Protection. (Id. at 4.) 12 1. Claims Against Defendants Johnson and Meyer 13 Plaintiff is a member of the Hindu religion. (Id.) Based on his religious beliefs, plaintiff 14 is a vegetarian and does not eat food that comes in contact with meat. (Id.) On April 28, 2022, 15 the chaplain approved plaintiff’s Hindu vegetarian diet. (Id.) However, plaintiff did not receive 16 his Hindu vegetarian diet the entire time plaintiff was housed at the Sacramento County Main Jail 17 (“Main Jail”) and RCCC, from April 21, 2022 to February 29, 2024. (Id.) Plaintiff claims that 18 other religious diets were prepared outside RCCC and the Main Jail to avoid contamination. (Id.) 19 Plaintiff’s food was prepared at RCCC and the Main Jail and was cooked and served to plaintiff 20 in cross-contaminated utensils. (Id.) Plaintiff never knew the ingredients in the food he was 21 served. (Id. at 5.) Plaintiff filed grievances regarding the failure to receive a Hindu vegetarian 22 diet following his transfer from the Main Jail to RCCC. (Id.) Plaintiff appears to claim that 23 defendant Johnson, the Food Service Supervisor/Manager, and defendant Meyer, the Kitchen 24 Officer, reviewed and/or responded to these grievances but failed to correct the problem. (Id.) 25 Plaintiff alleges that on October 10, 2022, defendant Meyer told plaintiff, “Your diet will never 26 change.” (Id. at 13.) The job titles of defendants Johnson and Meyer suggest that these 27 defendants had the authority to provide plaintiff with the requested Hindu vegetarian diet. This 28 Court finds that claim one states a potentially colorable claim against defendants Johnson and 1 Meyer for violation of plaintiff’s First Amendment right to free exercise of religion based on 2 defendants’ alleged failure to provide plaintiff with a Hindu vegetarian diet. See O’Lone v. 3 Estate of Shabazz,

(1987) (citation omitted) (inmates “retain protections 4 afforded by the First Amendment including its directive that no law shall prohibit free exercise of 5 religion.”); McElyea v. Babbitt,

(9th Cir. 1987) (per curiam) (“Inmates…have 6 the right to be provided with food sufficient to sustain them in good health that satisfies the 7 dietary laws of their religion.”). 8 In claim one, plaintiff also alleges that defendants Johnson and Meyer served plaintiff 9 food containing red wine vinegar, which plaintiff consumed, in violation of plaintiff’s Hindu diet. 10 (ECF No. 13 at 5-6.) This Court finds that these allegations state a potentially colorable First 11 Amendment claim against defendants Johnson and Meyer for violating plaintiff’s First 12 Amendment right to free exercise of religion. 13 In claim one, plaintiff alleges that on November 18, 2022, plaintiff was served chorizo, 14 which is pork sausage. (Id. at 6.) Plaintiff returned this meal to the kitchen but was not provided 15 with a replacement meal. (Id.) Plaintiff alleges that he returned “voluminous” amounts of 16 breakfast, lunch and dinner food because it violated his Hindu vegetarian diet. (Id.) Based on 17 plaintiff’s claim that he never received his Hindu vegetarian diet while at RCCC, this Court finds 18 that these allegations raise a potentially colorable claim against defendants Johnson and Meyer 19 for alleged violations of plaintiff’s Fourteenth Amendment right to adequate food. See Bell v. 20 Wolfish,

, 535 n.16 (1976) (conditions of confinement claims raised by pretrial 21 detainees are analyzed under the Fourteenth Amendment’s Due Process Clause, rather than the 22 Eighth Amendment); Shorter v. Baca,

(9th Cir. 2018) (“Jail officials have a 23 duty to ensure that detainees are provide adequate shelter, food, clothing, sanitation, medical care, 24 and personal safety.”). 25 In claim one, plaintiff alleges that other religious food was prepared outside of the Main 26 Jail and RCCC to avoid contamination, including Muslim and Kosher diets. (ECF No. 13 at 4.) 27 Plaintiff appears to claim that defendants Johnson and Meyer violated plaintiff’s right to Equal 28 Protection by providing religious diets to inmates of other religions and failing to provide plaintiff 1 with plaintiff’s Hindu religious diet. This Court finds that these allegations state a potentially 2 colorable Equal Protection claim against defendants Johnson and Meyer. See Shakur v. Schriro, 3

(9th Cir. 2008) (quoting Cruz v. Beto,

(1972) (“[T]he Equal 4 Protection Clause entitles each prisoner to ‘a reasonable opportunity of pursuing his faith 5 comparable to the opportunity afforded fellow prisoners who adhere to conventional religious 6 precepts.’”)). 7 2. Claims Against Defendant Xiong 8 Plaintiff alleges that on December 16, 2022, defendant Xiong deliberately removed 9 plaintiff’s worship pictures of religious deities. (ECF No. 13 at 6-7.) Defendant Xiong threw 10 these pictures from the wall on to plaintiff’s bunk. (Id.) Plaintiff alleges that defendant Xiong 11 destroyed plaintiff’s altar of religious worship. (Id.) These allegations state a potentially 12 colorable First Amendment claim against defendant Xiong. See O’Lone, 482 U.S at 348. 13 Plaintiff also alleges that defendant Xiong did not remove religious pictures from other religions 14 displayed by other inmates. (ECF No. 13 at 7.) These allegations state a potentially colorable 15 Equal Protection claim against defendant Xiong for discrimination based on plaintiff’s religion. 16 See Shakur,

. 17 Plaintiff also alleges that he felt that defendant Xiong discriminated against plaintiff based 18 on plaintiff’s race when he removed plaintiff’s religious pictures but not pictures displayed by 19 other inmates regarding other religions and that were sexually suggestive. (ECF No. 13 at 7.) As 20 the Court advised plaintiff in the order screening plaintiff’s first amended complaint, “[p]risoners 21 are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious 22 discrimination based on race.” Wolff v. McDonnell,

(1974) (citation omitted). 23 To state a claim for violation of the Equal Protection Clause, “a plaintiff must show that the 24 defendants acted with an intent or purpose to discriminate against the plaintiff based on 25 membership in a protected class.” Furnace v. Sullivan,

(9th Cir. 2013) 26 (citation and internal quotation marks omitted). In the second amended complaint, plaintiff has 27 not pled sufficient facts demonstrating that defendant Xiong acted with intent to discriminate 28 against plaintiff based on plaintiff’s race when defendant Xiong allegedly removed plaintiff’s 1 religious pictures. Accordingly, this claim should be dismissed. 2 Plaintiff alleges that defendant Xiong did not help plaintiff to “correct” plaintiff’s 3 religious diet. (ECF No. 13 at 7.) Plaintiff alleges that during breakfast most of the time, 4 defendant Xiong was the lead deputy in the morning shift. (Id.) Defendant Xiong noted 5 plaintiff’s complaint about plaintiff’s failure to receive his Hindu vegetarian diet but did not solve 6 the issue. (Id.) These allegations state a potentially colorable First Amendment right to free 7 exercise of religion claim against defendant Xiong. See McElyea,

. 8 3. Fourth Amendment 9 The Fourth Amendment protects “against unreasonable searches and seizures.” U.S. 10 Const. amend IV. This Court finds that in claim one, plaintiff pleads no facts suggesting a Fourth 11 Amendment claim based on unreasonable searches and seizures. Accordingly, plaintiff’s Fourth 12 Amendment claim should be dismissed. 13 4. Eighth Amendment 14 “Eighth Amendment protections apply only once a prisoner has been convicted of a crime, 15 while pretrial detainees are entitled to the potentially more expansive protections of the Due 16 Process Clause of the Fourteenth Amendment.” Mediola-Martinez v. Arpaio,

, 17 1246 n. 5 (9th Cir. 2016); Bell,

n. 6. Because plaintiff was a pretrial detainee at 18 the time of the alleged deprivations, plaintiff’s claims are raised under the Fourteenth 19 Amendment as opposed to the Eighth Amendment. Accordingly, plaintiff’s Eighth Amendment 20 claim raised in claim one should be dismissed. 21 B. Claim Two 22 In claim two, plaintiff alleges violations of the Fourth, Eighth and Fourteenth 23 Amendments. (ECF No. 13 at 9.) Plaintiff alleges that on January 28, 2023, plaintiff was 24 escorted to a holding tank to resolve his grievances regarding his failure to receive his Hindu 25 vegetarian diet. (Id.) Plaintiff alleges that one of the deputies escorting plaintiff to the holding 26 tank, defendant Saucedo, used excessive force against plaintiff by forcibly pushing plaintiff 27 down. (Id.) Plaintiff alleges that plaintiff suffered injuries as a result of the excessive force 28 including chronic lumbar radiculopathy, foot pain, hyperlipidemia, lower back pain, left shoulder 1 pain, varicose veins of lower leg, numbness of both feet, etc. (Id.) Attached to plaintiff’s second 2 amended complaint is a response by jail officials to plaintiff’s grievance regarding this incident. 3 (Id. at 22.) In the grievance, plaintiff claimed that defendant Saucedo grabbed plaintiff’s shoulder 4 from behind, shoved plaintiff toward Holding Tank # 1, and began to yell expletives toward 5 plaintiff. (Id.) The response states, in relevant part, “The Body Worn Camera footage revealed 6 Deputy Saucedo appeared to have grabbed your shoulder from behind and shove you, as you 7 state. The Sacramento Sheriff’s Office values thorough and objective investigations to maintain 8 the public’s trust. As a result, this issue is being addressed internally.” (Id. at 22.) 9 The Fourteenth Amendment (and not the Eighth Amendment) protects a pretrial detainee 10 from the use of excessive force that amounts to punishment. See Kingsley v. Hendrickson, 576

. This Court finds that plaintiff states a potentially colorable Fourteenth 12 Amendment excessive force claim against defendant Saucedo. Plaintiff’s Eighth Amendment 13 excessive force claim should be dismissed because the Eighth Amendment applies to convicted 14 prisoners, not pretrial detainees. See

. 15 Plaintiff alleges that on January 28, 2023, defendant Saucedo was “assisted” by 16 defendants Deo, Lee and Trost. (ECF No. 13 at 9.) Plaintiff alleges that defendants Saucedo, 17 Deo, Lee and Trost surrounded plaintiff and began to threaten plaintiff with profanity. (Id.) 18 Plaintiff alleges that defendants Deo, Lee and Trost encouraged defendant Saucedo to do more 19 harm to plaintiff. (Id. at 10.) This Court finds that these allegations against defendants Deo, Lee 20 and Trost state potentially colorable excessive force claims against these defendants based on 21 their alleged failure to intervene in defendant Saucedo’s alleged excessive force and/or their 22 enabling of the alleged excessive force. See Hughes v. Rodriguez,

(9th Cir. 23 2003) (internal citations omitted) (“Officers can be liable for failing to intercede in situations 24 where excessive force is claimed to be employed by other officers only if ‘they had an 25 opportunity to intercede’…Furthermore, officers can be liable for excessive force on a theory of 26 integral participation only if they participate ‘in some meaningful way’ in the specific actions that 27 constituted the violation.”). 28 In claim two, plaintiff also raises a Fourth Amendment claim based on unreasonable 1 searches and seizures. (ECF No. 13 at 9.) In claim two, plaintiff pleads no facts suggesting a 2 Fourth Amendment claim based on unreasonable searches and seizures. Accordingly, plaintiff’s 3 Fourth Amendment claim raised in claim two should be dismissed. 4 C. Claim Three 5 In claim three, plaintiff alleges violation of the Fourteenth Amendment and plaintiff’s 6 Eighth Amendment right to adequate medical. (ECF No. 13 at 11.) As discussed below, claim 7 three also raises claims pursuant to the First and Fourth Amendments. 8 1. Claims Against Defendants Ceries, Tseng, Randy and Alex Regarding Medical 9 Care 10 Claims for violations of the right to adequate medical care brought by pretrial detainees 11 arise under the Fourteenth Amendment and are evaluated under an objective deliberate- 12 indifference standard. See Gordon v. Orange,

(9th Cir. 2018). “[T]he 13 elements of a pretrial detainee’s medical care claim against an individual defendant under the due 14 process clause of the Fourteenth Amendment are: (i) the defendant made an intentional decision 15 with respect to conditions under which the plaintiff was confined; (ii) those conditions put the 16 plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable 17 available measures to abate that risk, even though a reasonable official in the circumstances 18 would have appreciated the high level of risk involved—making the consequences of defendant’s 19 conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s 20 injuries. With respect to the third element, the defendant’s conduct must be objectively 21 unreasonable, a test that will necessarily turn[] on the facts and circumstances of each particular 22 case.”

(footnote, citations and internal quotation marks omitted). 23 Plaintiff alleges that on January 29, 2023, plaintiff wrote a health care service request 24 based on the injuries he suffered during the excessive force incident the day before. (ECF No. 13 25 at 12.) On January 31, 2023, plaintiff was seen by a social worker who told plaintiff that she 26 would give plaintiff more information, but she failed to do so. (Id.) On February 8, 2023, 27 plaintiff submitted another health care service request. (Id.) This request was acknowledged by 28 / / / 1 medical staff on February 9, 2023.1 (Id.) Plaintiff wrote another health care request on February 2 16, 2023. (Id.) On February 26, 2023, a nurse saw plaintiff “to let the medical doctor know 3 about plaintiff’s back pain.” (Id.) On April 13, 2023, defendant Tseng authorized an x-ray and 4 blood test for plaintiff, but only to test for tuberculosis. (Id. at 12, 13.) On April 13, 2023, 5 defendant Tseng saw plaintiff for plaintiff’s back injury and shoulder and leg pain. (Id. at 12.) A 6 lower bunk chrono was issued for plaintiff on April 13, 2023, but plaintiff was not moved to the 7 lower bunk until May 31, 2023 by defendant Ceries. (Id. at 11-12.) Defendant Tseng had also 8 restricted plaintiff from climbing. (Id. at 11.) However, on May 31, 2023, plaintiff was moved 9 from the bottom tier to a lower bunk on the top tier.2 (Id.) Plaintiff told defendant Ceries that 10 plaintiff was having a hard time climbing up and down stairs and that defendant Tseng had 11 restricted plaintiff from climbing. (Id.) Defendant Ceries replied through the intercom by telling 12 plaintiff to follow the order and move from the bottom tier to the lower bunk on the top tier. (Id. 13 at 13.) 14 From June 1, 2023 to February 29, 2024, the medical staff at RCCC did not give plaintiff 15 further consultation or treatment. (Id.) On February 29, 2024, plaintiff was transferred to the 16 custody of the California Department of Corrections and Rehabilitation (“CDCR”). (Id.) On 17 January 29, 2023, February 8, 2023 and February 13, 2023, defendants Alex and Randy refused 18 to treat plaintiff by saying that at RCCC they do not provide treatment for “back pain injury.” 19 (Id.) Defendants Alex and Randy advised plaintiff to follow-up with plaintiff’s primary care 20 physician when released from custody. (Id.) On May 23, 2023 and May 27, 2023, plaintiff wrote 21 to the medical clinic requesting an x-ray for his lower back pain. (Id.) Plaintiff received no 22 response to this request. (Id.) Plaintiff alleges that because defendants Tseng, Randy and Alex 23 refused to treat plaintiff’s injuries suffered during the excessive force incident alleged in claim 24 two, plaintiff suffered chronic lumbar radiculopathy, foot pain, hyperlipidemia, lower back pain,

25 1 In the second amended complaint, plaintiff alleges that the health care request submitted on February 8, 2023 was acknowledged by medical staff on January 8, 2023. (Id.) It is clear that 26 plaintiff meant to claim that on February 9, 2023 medical staff acknowledged the health care 27 request submitted on February 8, 2023. 2 To clarify, plaintiff appears to claim that he was moved to a cell on the top tier of his housing 28 unit and assigned the lower bed bunk in that cell. 1 left shoulder pain, varicose veins of lower legs, numbness in both feet, disc protrusion, etc. (Id. at 2 13-14.) Plaintiff alleges that prior to suffering these injuries, plaintiff had no health issues. (Id. 3 at 14.) 4 Liberally construing plaintiff’s second amended complaint, plaintiff appears to allege that 5 while defendant Tseng authorized a lower bunk chrono and restricted plaintiff from climbing on 6 April 13, 2023, defendant Tseng did not provide any treatment for the injuries plaintiff suffered 7 after the January 28, 2023 excessive force incident. These allegations state a potentially colorable 8 Fourteenth Amendment inadequate medical care claim against defendant Tseng. Plaintiff alleges 9 that defendants Randy and Alex refused to treat plaintiff’s back pain and advised plaintiff to seek 10 treatment for back pain after his release from custody. These allegations state a potentially 11 colorable Fourteenth Amendment inadequate medical care claim against defendants Randy and 12 Alex. Plaintiff alleges that defendant Ceries moved plaintiff to the upper tier after plaintiff told 13 defendant Ceries that defendant Tseng had restricted plaintiff from climbing. These allegations 14 state a potentially colorable Fourteenth Amendment inadequate medical care claim against 15 defendant Ceries. 16 Plaintiff also claims that defendant Tseng authorized a lower bunk for plaintiff on April 17 13, 2023, but defendant Ceries did not provide plaintiff with a lower bunk until May 31, 2023. 18 However, plaintiff pleads no facts demonstrating that defendant Ceries caused the delay in 19 plaintiff’s receipt of the lower bunk. The Civil Rights Act under which this action was filed 20 provides as follows: 21 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 22 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 23 or other proper proceeding for redress. 24

. The statute requires that there be an actual connection or link between the 25 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 26 Monell v. Department of Social Servs.,

(1978); Rizzo v. Goode,

(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the 28 meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or 1 omits to perform an act which he is legally required to do that causes the deprivation of which 2 complaint is made.” Johnson v. Duffy,

(9th Cir. 1978). Because plaintiff fails 3 to plead sufficient facts demonstrating that defendant Ceries caused the delay in plaintiff’s receipt 4 of the lower bunk, this claim against defendant Ceries should be dismissed. 5 2. Claim Against Defendant Ceries Regarding Hindu Diet 6 Plaintiff alleges that defendant Ceries worked the morning shift. (ECF No. 13 at 14.) 7 Defendant Ceries was rude, disrespectful and angry when plaintiff tried to “rectify” not receiving 8 his Hindu vegetarian diet. (Id.) Defendant threatened plaintiff through the intercom, saying that 9 she would put plaintiff in the holding tank. (Id.) Defendant Ceries told plaintiff that she could 10 not correct the diet because the kitchen was closed, which was not correct. (Id.) Sometimes 11 defendant Ceries refused to answer plaintiff. (Id.) These allegations state a potentially colorable 12 First Amendment right to free exercise of religion claim against defendant Ceries. See McElyea, 13

. 14 3. Claims Against Defendants Cuems and Alex Regarding Eyeglasses 15 On October 27, 2022, plaintiff received a note from defendant Cuems saying that plaintiff 16 could not have the prescribed eyeglasses that plaintiff’s wife brought because they had metal 17 frames. (ECF No. 13 at 14.) Plaintiff told defendant Cuems that there were other inmates at 18 RCCC who had eyeglasses with metal frames. (Id.) Plaintiff told defendant Cuems that there 19 were inmates at RCCC who had metal walkers and other metal gear. (Id.) Defendant Cuems did 20 not respond to plaintiff. (Id.) Plaintiff did not receive the prescribed eyeglasses brought by 21 plaintiff’s wife. (Id.) Plaintiff bought temporary eyeglasses at the commissary. (Id.) These 22 allegations state a potentially colorable Fourteenth Amendment inadequate medical care claim 23 against defendant Cuems. 24 Plaintiff alleges that on October 27, 2022, plaintiff sent a medical request to see optometry 25 for eyeglasses. (ECF No. 13 at 15.) Defendant Alex told plaintiff that it would take eight to nine 26 months for plaintiff to see an eye doctor in order to get new eyeglasses. (Id.) Plaintiff told 27 defendant Alex that plaintiff wanted to keep the appointment with the eye doctor. (Id.) However, 28 the whole time plaintiff was at RCCC, plaintiff was not seen by optometry. (Id.) Plaintiff 1 suffered vision loss as a result of using non-prescribed eyeglasses purchased from the 2 commissary. (Id.) This Court finds that plaintiff fails to plead sufficient facts demonstrating that 3 defendant Alex, a nurse, caused plaintiff’s failure to see the eye doctor at RCCC. While 4 defendant Alex allegedly told plaintiff that it would take eight to nine months to see the eye 5 doctor, plaintiff fails to plead sufficient facts demonstrating that acts or omissions by defendant 6 Alex caused plaintiff to not see the eye doctor at RCCC. See Johnson,

. 7 Accordingly, this claim against defendant Alex should be dismissed. 8 4. Claim Against Defendant Deo 9 On December 12, 2023, while plaintiff was at court, defendant Deo searched plaintiff’s 10 personal property, including plaintiff’s legal documents, religious materials and food items. (ECF 11 No. 13 at 15.) Plaintiff alleges that defendant Deo conducted the search outside of plaintiff’s 12 presence for no reason. (Id.) Plaintiff’s personal property had been nicely stored in a cardboard 13 box. (Id.) When plaintiff returned from court, plaintiff’s belongings had been removed from the 14 cardboard box and some were thrown on to the bunk and floor. (Id.) 15 Plaintiff appears to raise a Fourth Amendment claim based on the allegations set forth 16 above against defendant Deo. Prisoners, including detainees, have no reasonable expectation of 17 privacy in their cell and are not entitled to Fourth Amendment protection against unreasonable 18 search and seizures. See Hudson v. Palmer,

(1984); Mitchell v. Dupnik, 75

(9th Cir. 1996) (holding that pre-trial detainee has no reasonable expectation of 20 privacy in cell; no Fourth Amendment violation when inmate not present during search of legal 21 materials). For these reasons, plaintiff does not state a potentially colorable Fourth Amendment 22 claim against defendant Deo and this claim should be dismissed. 23 5. Claim Against Defendant Leahy 24 Plaintiff alleges that on March 9, 2023, defendant Leahy violated plaintiff’s right to seek 25 remedies to the highest level of review regarding plaintiff’s grievance seeking his Hindu 26 vegetarian diet. (ECF No. 13 at 16.) Plaintiff alleges that he did not receive his Hindu religious 27 diet. (Id.) Plaintiff alleges that defendant Leahy ordered restrictions on plaintiff’s grievances 28 regarding his Hindu vegetarian diet. (Id.) 1 To the extent plaintiff claims a due process violation against defendant Leahy based on 2 the alleged restrictions on plaintiff’s grievances, these allegations do not state a potentially 3 colorable due process claim because inmates do not have a liberty interest in a specific grievance 4 procedure. See Ramirez v. Galaza,

(9th Cir. 2003) (citing Mann v. Adams, 5

(9th Cir. 1988)); Renfro v. West Valley Detention Center Classification Staff, 6

, at *6 (C.D. Cal. June 3, 2022) (pretrial detainees do not have a constitutional 7 right to specific grievance procedure); Campos v. Barnes,

, at *6 (C.D. Cal. 8 Apr. 21, 2021) (“Detainees and prisoners do not have an independent constitutional due process 9 entitlement to a specific administrative grievance procedure.”). Accordingly, on these grounds, 10 plaintiff’s due process claim against defendant Leahy based on the restriction placed on plaintiff’s 11 grievances should be dismissed. 12 Plaintiff appears to also raise a First Amendment claim against defendant Leahy based on 13 defendant Leahy’s alleged failure to process and/or respond to plaintiff’s grievances seeking the 14 Hindu vegetarian diet. These allegations state a potentially colorable First Amendment right to 15 free exercise of religion claim against defendant Leahy. See McElyea,

. 16 6. Eighth Amendment Claims 17 In claim three, plaintiff appears to raise claims alleging inadequate medical care under the 18 Eighth Amendment. Because plaintiff was a pretrial detainee at the time of the alleged 19 deprivations, plaintiff’s claims arise under the Fourteenth as opposed to the Eighth Amendment. 20 See Gordon,

. Accordingly, plaintiff’s Eighth Amendment claims raised in 21 claim three should be dismissed. 22 D. Conclusion 23 For the reasons discussed above, this Court finds that plaintiff’s second amended 24 complaint states the following potentially colorable claims for relief: 1) claim one against 25 defendants Johnson and Meyer for allegedly violating the First Amendment by failing to provide 26 plaintiff with a Hindu vegetarian diet and serving plaintiff meals containing red wine vinegar; 27 2) claim one against defendants Johnson and Meyer for allegedly violating plaintiff’s Fourteenth 28 Amendment right to adequate food; 3) claim one against defendants Johnson and Meyer for 1 allegedly violation the Equal Protection Clause by providing religious diets to inmates of other 2 religions and failing to provide plaintiff with a Hindu vegetarian diet; 4) claim one against 3 defendant Xiong for allegedly violating the First Amendment by removing/destroying plaintiff’s 4 religious altar; 5) claim one against defendant Xiong for allegedly violating the Equal Protection 5 Clause by removing plaintiff’s Hindu religious pictures but not religious pictures displayed by 6 inmates of other religions; 6) claim one against defendant Xiong for allegedly violating the First 7 Amendment by failing to provide plaintiff with Hindu vegetarian meals; 7) claim two against 8 defendants Saucedo, Deo, Lee and Trost for allegedly violating the Fourteenth Amendment based 9 on excessive force; 8) claim three against defendants Tseng, Randy, Alex and Ceries for allegedly 10 violating the Fourteenth Amendment by providing plaintiff with inadequate medical care; 11 9) claim three against defendant Ceries for allegedly violating the First Amendment by failing to 12 provide plaintiff with Hindu vegetarian meals; 10) claim three against defendant Cuems for 13 allegedly violating the Fourteenth Amendment by failing to provide plaintiff with eyeglasses; and 14 11) claim three against defendant Leahy for allegedly violating the First Amendment by failing to 15 provide plaintiff with Hindu vegetarian meals. Accordingly, this Court separately orders plaintiff 16 to return the forms necessary for service of these claims. 17 For the reasons discussed above, this Court finds that the following claims raised in the 18 second amended complaint are not potentially colorable: 1) claim one against defendant Xiong 19 for allegedly violating the Equal Protection Clause by discriminating against plaintiff based on 20 race; 2) claim one alleging violation of the Fourth Amendment; 3) claim one alleging violation of 21 the Eighth Amendment; 4) claim two alleging violation of the Fourth Amendment; 5) claim two 22 alleging violation of the Eighth Amendment; 6) claim three against defendant Ceries alleging 23 violation of the Fourteenth Amendment based on delay in plaintiff’s receipt of a lower bunk; 24 7) claim three against defendant Alex alleging violation of the Fourteenth Amendment based on 25 plaintiff’s failure to see the eye doctor; 8) claim three against defendant Deo alleging violation of 26 the Fourth Amendment; 9) claim three against defendant Leahy alleging violation of the Due 27 Process Clause of the Fourteenth Amendment; and 10) claim three alleging violation of the 28 Eighth Amendment. 1 Plaintiff has been granted leave to amend twice already. (ECF Nos. 7, 12.) Having 2 reviewed the second amended complaint, this Court finds that plaintiff cannot cure the pleading 3 defects as to those claims found not potentially colorable above. Accordingly, this Court 4 recommends dismissal without leave to amend of those claims in the second amended complaint 5 that are not potentially colorable. See Rosati v. Igbinoso,

(9th Cir. 2015) 6 (quoting Akhtar v. Mesa,

(9th Cir. 2012) (“A district court should not 7 dismiss a pro se complaint without leave to amend … unless ‘it is absolutely clear that the 8 deficiencies in the complaint could not be cured by amendment.’”). 9 IV. CONCLUSION 10 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall assign a district 11 judge to this action; and 12 IT IS HEREBY RECOMMENDED that the following claims raised in the second 13 amended complaint be dismissed without leave to amend: 1) claim one against defendant Xiong 14 for allegedly violating the Equal Protection Clause by discriminating against plaintiff based on 15 race; 2) claim one alleging violation of the Fourth Amendment; 3) claim one alleging violation of 16 the Eighth Amendment; 4) claim two alleging violation of the Fourth Amendment; 5) claim two 17 alleging violation of the Eighth Amendment; 6) claim three against defendant Ceries alleging 18 violation of the Fourteenth Amendment based on delay in plaintiff’s receipt of a lower bunk; 19 7) claim three against defendant Alex alleging violation of the Fourteenth Amendment based on 20 plaintiff’s failure to see the eye doctor; 8) claim three against defendant Deo alleging violation of 21 the Fourth Amendment; 9) claim three against defendant Leahy alleging violation of the Due 22 Process Clause of the Fourteenth Amendment; and 10) claim three alleging violation of the 23 Eighth Amendment. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of

(b)(l). Within fourteen days 26 after being served with these findings and recommendations, plaintiff may file written objections 27 with the court and serve a copy on all parties. Such a document should be captioned 28 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 1 | failure to file objections within the specified time may waive the right to appeal the District 2 | Court’s order. Martinez v. Yist,

(9th Cir. 1991). 3 4 Dated: April 30, 2025 > Cha Spo 5 CHI SOO KIM 6 | scamn77> UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16