(PC) Estrada v. California Correctional Institution

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 NICHOLAS ESTRADA, ) Case No.: 1:18-cv-00599-AWI-SAB (PC)

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12 Plaintiff, )

) FINDINGS AND RECOMMENDATION

13 v. ) RECOMMENDING DEFENDANTS’ MOTION

TO DISMISS BE DENIED

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14 CALIFORNIA CORRECTIONAL

INSTITUTION, et al., ) [ECF No. 16]

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16 Defendants. )

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18 Plaintiff Nicholas Estrada is appearing pro se and in forma pauperis in this civil rights action

19 pursuant to 42 U.S.C. § 1983.

20 Currently before the Court is Defendants’ motion to dismiss, filed September 6, 2019.

21 I.

22 RELEVANT HISTORY

23 This action is proceeding against Defendants Bounville and Sullivan for deliberate indifference

24 to a serious medical need in violation of the Eighth Amendment.

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1 As previously stated, on September 6, 2019, Defendants filed a motion to dismiss the action.

2 (ECF No. 16.) Plaintiff did not file an opposition and the time to do has expired.1 Local Rule 230(l).

3 Accordingly, Defendants’ motion to dismiss is deemed submitted for review without oral argument.

4 Id.

5 II.

6 LEGAL STANDARD

7 A motion to dismiss, based on res judicata grounds, is properly made under Federal Rule of

8 Civil Procedure 12(b)(1). Gupta v. Thai Airways Intern., Ltd., 487 F.3d 759, 763 (9th Cir. 2007).

9 However, the court applies California law on claim preclusion to cases brought in federal court under

10 42 U.S.C. § 1983. “Congress has specifically required all federal courts to give preclusive effect to

11 state-court judgments whenever the courts of the State from which the judgments emerged would do

12 so.” Allen v. McCurry, 449 U.S. 90, 96 (1980).

13 A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim,

14 and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts

15 alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th

16 Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, a court’s review is

17 generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 998

18 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. California Dept. of

19 Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998).

20 To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

21 true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

22 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks omitted); Conservation

23 Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court

24 must accept the factual allegations as true and draw all reasonable inferences in favor of the non-

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1 On March 23, 2020, the Court directed Defendants to re-serve a copy of their motion to dismiss on Plaintiff, as his most

27 recent address of record. (ECF No. 20.) On this same date, Defendants filed a notice that their motion to dismiss was re-

served on Plaintiff at his new address of record as reflected in the February 2, 2020, notice of change of address. (ECF

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1 moving party. Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Morales v. City of Los

2 Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). Yet, the court “need not accept as true allegations

3 contradicting documents that are referenced in the complaint or that are properly subject to judicial

4 notice.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2006).

5 III.

6 DISCUSSION

7 A. Allegations of Complaint

8 Plaintiff alleges that on August 28, 2016, he was transferred to CCI in Tehachapi, California, in

9 the mental health program. Plaintiff has severe mental disorders, including audio and visual

10 hallucinations, bipolar disorder, depression, schizophrenia and has suffered abuse under the CDCR

11 mental health program.

12 Plaintiff was seen, treated, and diagnosed by an unlicensed psychologist; a social worker named

13 R. Bounville, who referred to herself as a licensed psychologist. She had access to Plaintiff’s mental

14 health file without his permission. Defendant Bounville instructed and advised Plaintiff it would be best

15 for him to stop taking his mental health medication due to their long-term side effects which is beyond

16 her cope of experience and profession. Defendant Bounville does not have the authority to give patient

17 advice or consultation in regard to psychiatric medication nor its side effects. Plaintiff contends that

18 had he known that Defendant Bounville was not a psychologist he would not have disclosed his personal

19 information to her.

20 Several times between August 2016 to June 2017, Plaintiff requested to see the social worker,

21 displaying symptoms of mental disorders. These included hearing voices, audio and visual

22 hallucinations, anxiety, weight gain, depression, anger issues, mood swings, arguing and fighting, over

23 eating, lack of sleep, and crying with thoughts of suicide. Plaintiff alleges that his symptoms were

24 consistent with schizophrenic disorder, bipolar disorder, and depression. Plaintiff explained his

25 symptoms in his requests and his need for medication and a psychiatrist. The social worker told Plaintiff

26 that she would call him into her office every week to see how he was doing, but she never did. After

27 several months of no responses or follow-ups, Plaintiff’s symptoms became too overwhelming to

28 handle. He requested to see the social worker by filing a mental health medical request form, and she

1 referred him to a psychiatrist.

2 Plaintiff had a tele-medicine video conference with the psychiatrist and an assistance nurse was

3 present who took Plaintiff’s vitals and remained present during the session. During the session, Plaintiff

4 tried to express his symptoms to the doctor, but did not feel comfortable because the nurse kept laughing

5 and giggling at Plaintiff’s symptoms. Believing that he was entitled to confidentiality of his symptoms,

6 Plaintiff cut off the conversation and left the room.

7 Soon thereafter, the social work called Plaintiff for a meeting, and he was still under the

8 impression that she was a psychologist. Plaintiff told her about the conference and his concerns, and

9 requested to see a psychiatrist in person. She gave Plaintiff a copy of who is entitled to see his medical

10 file and that all communication was to be done through TelePsychic, including getting medication. She

11 told him that there was no other option as CCI did not have an onsite psychiatrist.

12 Plaintiff went on for months without mental health care, until CCI brought in a licensed

13 psychologist, Dr. Rosen. This was after Plaintiff filed an administrative complaint that went two levels

14 and up to Sacramento. The response to Plaintiff’s complaint made him aware that Defendant Bounville

15 was a social worker, not a licensed psychologist.

16 Plaintiff alleges that it was Warden Sullivan’s overall decision to employ social workers in place

17 of licensed psychologists due to cost efficiency, and he gave access to patent mental health files to the

18 social workers. It was Warden Sullivan’s responsibility to ensure and oversee that there would be a

19 licensed psychologist and psychiatrist on facility grounds available to inmates that participate in the

20 mental health program. Warden Sullivan also implemented and permitted the mental health department

21 to use TelePsychic without full knowledge of the psychiatrist’s ability to fully observe and diagnose the

22 patient in regards to their symptoms and medication side effects.

23 B. Request for Judicial Notice

24 Defendant requests the Court to take judicial notice of: (1) Plaintiff’s sworn declaration

25 submitted in Coleman v. Brown, Jr., et al., Case No. 2:90-cv-00520-KJM-DB, (2) section 12.08.100,

26 Telepsychiatry, Chapter 8, Volume 12: CDCR Tele-Psychiatry Policy, 2016 version, and (3) the

27 Court’s order on Tele-Psychiatry, Coleman v. Brown, Jr., et al., Case No. 2:90-cv-00520-KJM-DB, in

28 support of their motion to dismiss. (ECF No. 16-2.)

1 Federal Rule of Evidence 201 permits the Court to take judicial notice at any time. A

2 judicially noticed fact must be one not subject to reasonable dispute in that it is either: (1) generally

3 known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready

4 determination by resort to sources who accuracy reasonably cannot be questioned. Fed. R. Evid.

5 201(b). Courts may take judicial notice of facts related to the case before it. Amphibious Partners,

6 LLC v. Redman, 534 F.3d 1357, 1361-1362 (10th Cir. 2008) (district court was entitled to take

7 judicial notice of its memorandum of order and judgment from previous case involving same parties).

8 This Court may judicially notice the records and filing of other court proceedings. Tellabs, Inc. v.

9 Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Bennett v. Medtronic, Inc., 285 F.3d 801, 802

10 n.2 (9th Cir. 2002). This includes documents filed in state courts. Harris v. Cnty. of Orange, 682 F.3d

11 1126, 1132 (9th Cir. 2012).

12 Because the Court may take judicial notice of public records, including duly recorded

13 documents under Rule 201(b)(2), Defendants’ request to take judicial notice of the above-mentioned

14 documents is granted.

15 C. Motion to Dismiss

16 Defendants argue it is clear on the face of the sworn declaration attached to Plaintiff’s first

17 amended complaint and judicially-noticed records, that Defendants did not violate Plaintiff’s

18 constitutional rights and they are entitled to qualified immunity.

19 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual punishment

20 unless the mistreatment rises to the level of “deliberate indifference to serious medical needs.” Jett v.

21 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The

22 “deliberate indifference” standard involves an objective and a subjective prong. First, the alleged

23 deprivation must be, in objective terms, “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834

24 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must act with a

25 “sufficiently culpable state of mind,” which entails more than mere negligence, but less than conduct

26 undertaken for the very purpose of causing harm. Farmer, 511 U.S. at 834–35.

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1 The two-part test for deliberate indifference requires the plaintiff to show (1) “a ‘serious medical

2 need’ by demonstrating that failure to treat a prisoner’s condition could result in further significant injury

3 or the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need was

4 deliberately indifferent.” Jett, 439 F.3d at 1096. A prison official does not act in a deliberately

5 indifferent manner unless the official “knows of and disregards an excessive risk to inmate health or

6 safety.” Farmer, 511 U.S. at 837. “Deliberate indifference is a high legal standard,” Simmons, 609 F.3d

7 at 1019 (9th Cir.2 010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where

8 there was “a purposeful act or failure to respond to a prisoner’s pain or possible medical need” and the

9 indifference caused harm, Jett, 439 F.3d at 1096. Indifference “may appear when prison officials deny,

10 delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison

11 physicians provide medical care.” Id. (citation omitted).

12 In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner’s

13 civil rights have been abridged, “the indifference to his medical needs must be substantial. Mere

14 ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton

15 v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105–06). “[A]

16 complaint that a physician has been negligent in diagnosing or treating a medical condition does not

17 state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does

18 not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106;

19 see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is

20 insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright,

21 900 F.2d 1332, 1334 (9th Cir. 1990). Additionally, a prisoner’s mere disagreement with diagnosis or

22 treatment does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th

23 Cir. 1989).

24 1. Defendant Bounville

25 Defendant Bounville argues that Plaintiff’s sworn declaration demonstrates that Bounville had

26 no role, other than referring him to a psychiatrist, in prescribing, changing, or withholding his mental

27 health medications while at CCI.

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1 In the operative first amended complaint, Plaintiff alleges, in pertinent part, that, on August 28,

2 2016, he was transferred to CCI. He was classified as a CCCMS inmate who suffered from severe

3 mental health disorders and needed treatment from a licensed psychologist or psychiatrist. At CCI,

4 Plaintiff saw Defendant Bounville, a Licensed Social Worker who improperly held herself out as a

5 licensed psychologist. Defendant Bounville acted outside the scope of her license by advising

6 Plaintiff to stop taking his prescribed medication because he was doing well and it would be best to

7 “stay off” the medication due to long-term side effects.

8 In Plaintiff’s sworn declaration, filed in Coleman v. Brown, Jr., et al., Case No. 2:90-cv-00520-

9 KJM-DB, Plaintiff states, in pertinent part, that “[a]round the time I arrived at CCI in August 2016, I

10 had stopped taking my medications because I wanted to try managing my symptoms on my own.

11 However, a short time later I started feeling worse and wanted to talk to a psychiatrist about my

12 medications. When I told my primary clinician that I was having troubles with my medications, she

13 referred me to see a telepsychiatrist.” (First Am. Compl. Ex. A; see also ECF No. 16-2.) Plaintiff also

14 states, in part, that “[a]ll of the distress and agitation from not seeing an in-person psychiatrist and

15 being refused my medication caused me extreme mental suffering. These problems were so severe

16 that on May 2, 2018, I filed a civil rights complaint against CDCR, Estrada v. California Correctional

17 Institution, et al., No. 1:18-cv-0599-SAB (E.D. Cal.). In my complaint, I argue, among other things,

18 that telepsychiatry is not an appropriate method of mental health treatment.” (Id.)

19 In the February 12, 2019 screening order, the Court found that Plaintiff stated a cognizable

20 claim against Defendant Bounville because she told him to stop taking his mental health medication,

21 which was beyond the scope of her profession as a social worker, and that he requested to see her

22 several times between August 2016 and June 2017, displaying symptoms of severe mental health

23 disorders, but she failed to see him. (ECF No. 9 at 9.)

24 The Court may disregard “conclusory allegations” when they are “contradicted by documents

25 referred to in the complaint,” however, this doctrine is “only triggered upon a threshold determination

26 of a ‘contradiction,’ which only exists when the statements are ‘inherently inconsistent.’ ” Lawyers

27 Funding Grp., LLC v. Harris, No. 15-04059 MMM (Ex), 2015 WL 13298145, at *5 (C.D. Cal. Sept.

28 18, 2015). Plaintiff’s declaration does not establish such an inherent inconsistency.

1 Although Plaintiff did state that he stopped taking his medication because he wanted to try to

2 manage the symptoms on his own, it leaves open the possibility that Defendant Bounville advised him

3 to stop taking the medication to which he complied. Thus, for the purposes of claims against

4 Defendant Bounville, it is entirely possible that she advised Plaintiff to stop taking the medication

5 which lead to side effects. Therefore, the Court finds that Plaintiff’s statement is properly

6 characterized as an omission, not a contradiction. In addition, Defendants cannot pick and choose

7 portions of the allegations and exhibits in order to create a contradiction. Accordingly, the motion to

8 dismiss should be denied.

9 2. Defendant Sullivan

10 Defendant Sullivan argues that it is clear from the face of the relevant section of the CDCR

11 Mental Health Services Delivery System Program Guide in effect during the relevant period,

12 incorporated by reference to the first amended complaint that, the tele-psychiatry program was

13 implemented state-wide by CDCR, not Warden Sullivan.

14 Defendant Sullivan mischaracterizes Plaintiff’s claim. Pursuant to the Court’s February 12,

15 2019 screening order, the Court found that Plaintiff stated a cognizable claim against Defendant

16 Sullivan based on the allegations that he made the decision to employ social workers in place of

17 licensed psychologists to save money. (ECF No. 9 at 10.) Therefore, the use of telepsychiatry does

18 not address or implicate Plaintiff’s claim that Defendant Sullivan employed social workers in place of

19 licensed psychologists strictly to save money. Rather, the use of tele-psychiatry is relative to

20 Plaintiff’s claim of whether Defendant Bounville, as a social worker, provided sufficient mental health

21 treatment. Accordingly, Defendant Sullivan’s motion to dismiss should be denied.

22 3. Qualified Immunity

23 Defendants Bounville and Sullivan are they are entitled to qualified immunity on Plaintiff’s

24 Eighth Amendment deliberate indifference claim because there is no constitutional violation based on

25 the facts alleged in Plaintiff’s first amended complaint and it is not beyond debate that they pursued an

26 unreasonable course of treatment by referring him to tele-psychiatry appointment. (ECF No. 16, at 10-

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1 Qualified immunity is “immunity from suit rather than a mere defense to liability; and like an

2 absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mueller v.

3 Auker, 576 F.3d 979, 993 (9th Cir. 2009) (citation and internal quotations omitted). However,

4 “[d]etermining claims of qualified immunity at the motion-to-dismiss stage raises special problems for

5 legal decision making. On the one hand, we may not dismiss a complaint making ‘a claim to relief

6 that is plausible on its face.’” Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018). “But on the other

7 hand, defendants are entitled to qualified immunity so long as ‘their conduct does not violate clearly

8 established statutory or constitutional rights of which a reasonable person would have known.’” Id.

9 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “The Supreme Court has emphasized that

10 this is a low bar, explaining that ‘[q]ualified immunity gives government officials breathing room to

11 make reasonable but mistaken judgments about open legal questions.’” Id. (quoting Ashcroft v. al-

12 Kidd, 563 U.S. 731, 743 (2011)). “Indeed, ‘[w]hen properly applied,’ qualified immunity protects ‘all

13 but the plainly incompetent or those who knowingly violate the law.’” Id.

14 “Determining whether [Defendants] are owed qualified immunity involves two inquiries: (1)

15 whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the

16 officer’s conduct violated a constitutional right; and (2) if so, whether the right was clearly established

17 in light of the specific context of the case.” O’Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016)

18 (citation and internal quotation marks omitted); see also Saucier v. Katz, 533 U.S. 194, 201 (2001);

19 Mueller, 576 F.3d at 993. While often beneficial to address in that order, the Court has discretion to

20 address the two-step inquiry in the order it deems most suitable under the circumstances. Pearson v.

21 Callahan, 555 U.S. 223, 236 (2009) (overruling holding in Saucier that the two-step inquiry must be

22 conducted in that order, and the second step is reached only if the court first finds a constitutional

23 violation); Mueller, 576 F.3d at 993-94. “The dispositive question is whether the violative nature of

24 particular conduct is clearly established.” Mullenix v. Luna, ––– U.S. ––––, 136 S. Ct. 305, 308, 193

25 L.Ed.2d 255 (2015) (per curiam) (internal quotation marks omitted).

26 “When, as here, defendants assert qualified immunity in a motion to dismiss under Rule

27 12(b)(6), dismissal is not appropriate unless we can determine, based on the complaint itself, that

28 qualified immunity applies.” O’Brien, 818 F.3d at 936 (citation and internal quotation marks omitted).

1 “Thus, the plaintiff is entitled to all reasonable inferences from the facts alleged, not only those that

2 support his claim, but also those that defeat the immunity defense.” McKenna v. Wright, 386 F.3d

3 432, 436 (2d Cir. 2004). “If the operative complaint ‘contains even one allegation of a harmful act

4 that would constitute a violation of a clearly established constitutional right,’ then plaintiff[ is]

5 ‘entitled to go forward’ with [his] claims.” Keates, 883 F.3d at 1235 (citation omitted).

6 As applied to this case, the Eighth Amendment right to adequate mental health treatment was

7 “clearly established at the time of [D]efendants’ actions.” “Both as a matter of law and common

8 sense, in order to meet [the] requirement of the federal Constitution, defendants must provide inmates

9 with access to a competent medical staff.” Coleman v. Wilson, 912 F. Supp. 1282, 1308 (E.D. Cal.

10 1995); see also Cabrales v. County of Los Angeles, 864 F.2d 1454, 1461 (9th Cir. 1988) (“[A]ccess to

11 medical staff is meaningless unless that staff is competent and can render competent care.”), vacated

12 on other grounds, 490 U.S. 1087 (1989), decision reinstated on remand, 886 F.2d 235 (9th Cir. 1989).

13 The rendering of medical services by unqualified personnel constitutes Eighth Amendment deliberate

14 indifference. See Toussaint v. McCarthy, 801 F.2d 1080, 1112 (9th Cir. 1986) (“If plaintiffs correctly

15 contend that unqualified personnel[—medical technical assistants, registered nurses, and inmate

16 workers—]regularly engage in medical practice, precedent indicates that the prison health care

17 delivery system may reflect deliberate indifference to plaintiffs’ medical needs.”); see also Hoptowit

18 v. Ray, 682 F.2d 1237, 1252 (9th Cir. 1982) (holding that district court correctly found Eighth

19 Amendment violation where, inter alia, medical services were provided by nurse practitioners,

20 physician assistants, and hospital supervisors, and medication was prepared and dispensed by persons

21 not trained or licensed to do so). Therefore, a reasonable official in Defendants’ shoes would thus

22 have known that providing Plaintiff with unqualified mental health treatment violated Plaintiff’s

23 Eighth Amendment right to adequate constitutional mental health treatment.

24 Whether Defendant Bounville actually was qualified and/or sufficiently supervised, whether

25 Defendant Sullivan utilized social workers in an effort to save money, and whether the referral to tele-

26 psychiatry was sufficient in this instance are issues for a later stage in the litigation. Without further

27 development of the factual record, it is not possible to determine whether Defendants’ actions are

28 entitled to qualified immunity. Given the factual nature of the inquiry, determining qualified immunity

1 at the motion to dismiss stage is disfavored because it would require determination of constitutional

2 questions on a nonexistent factual record. Wong v. United States, 373 F.3d 952, 956–57 (9th Cir.

3 2004).

4 Based on the allegations set forth, construed in the light most favorable to Plaintiff, Plaintiff’s

5 first amended complaint sufficiently alleges that Defendants Bounville and Sullivan violated clearly

6 established law by being deliberately indifferent to the substantial risk of serious harm to Plaintiff by

7 providing unqualified mental health treatment.

8 As noted above, the Ninth Circuit has held that if a complaint “‘contains even one allegation of

9 a harmful act that would constitute a violation of a clearly established constitutional right,’ then

10 plaintiff[ is] ‘entitled to go forward’ with [his] claims.” Keates, 883 F.3d at 1235 (citation omitted).

11 However, the Ninth Circuit has also held that the Court’s “decision at the motion-to-dismiss stage

12 sheds little light on whether the government actors might ultimately be entitled to qualified immunity

13 ‘were the case permitted to proceed, at least to the summary judgment stage’ and the court is presented

14 with facts providing context for the challenged actions.” Id. Accordingly, Defendants’ motion to

15 dismiss Plaintiff’s Eighth Amendment claim based on qualified immunity should be denied without

16 prejudice. O’Brien, 818 F.3d at 936 (“Once an evidentiary record has been developed through

17 discovery, defendants will be free to move for summary judgment based on qualified immunity.”)

18 IV.

19 RECOMMENDATION

20 Based on the foregoing, it is HEREBY RECOMMENDED that Defendants’ motion to dismiss

21 the first amended complaint be denied.

22 These Findings and Recommendations will be submitted to the United States District Judge

23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21)

24 days after being served with these Findings and Recommendations, the parties may file written

25 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

26 Findings and Recommendations.” The parties are advised that failure to file objections within the

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wOoe 4:40 SOT OAD 2 POC 40 MEI te

1 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838

2 39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

3

4 IS SO ORDERED.

Al (ee

5 |] Dated: _ May 28, 2020 OF

6 UNITED STATES MAGISTRATE JUDGE

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