Arellano v. Guldseth

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 RAUL ARELLANO, CDCR #AH-1995, Case No.: 20-CV-1633 TWR (RBM)

12 Plaintiff,

ORDER (1) GRANTING MOTION

13 vs. TO PROCEED IN FORMA

PAUPERIS, AND (2) DISMISSING

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CLAIMS AND DEFENDANTS FOR

DR. GULDSETH; CALIFORNIA

15 FAILURE TO STATE A CLAIM

CORRECTIONAL HEALTH CARE

PURSUANT TO 28 U.S.C.

16 SERVICES; C.D.C.R; S. ROBERTS

§§ 1915(e)(2)(B) AND 1915A(b)

(CME),

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Defendants. (ECF No. 2)

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19 Plaintiff Raul Arellano, currently incarcerated at the Richard J. Donovan

20 Correctional Facility (“RJD”) in San Diego, California, is proceeding pro se in this civil

21 rights action pursuant to 42 U.S.C. Section 1983. (See ECF No. 1 (“Compl.”).) Plaintiff

22 asserts claims under the First Amendment, Eighth Amendment, and California state law

23 against two individuals, his primary care doctor and the chief medical executive, and two

24 state entities, California Correctional Health Care Services (“CCHCS”) and the California

25 Department of Corrections and Rehabilitation (“CDCR”). (See generally id.)

26 Plaintiff did not prepay the $400 civil filing fee required by 28 U.S.C. Section

27 1914(a) at the time of filing and has instead filed a Motion to Proceed in Forma Pauperis

28 (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (See ECF No. 2 (“Mot.”).)

1 MOTION TO PROCEED IN FORMA PAUPERIS

2 All parties instituting any civil action, suit, or proceeding in a district court of the

3 United States, except an application for writ of habeas corpus, must pay a filing fee of

4 $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

5 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

6 Section 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);

7 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). A prisoner who is granted leave

8 to proceed IFP remains obligated, however, to pay the entire fee in “increments” or

9 “installments,” Bruce v. Samuels, 577 U.S. ___, 136 S. Ct. 627, 629 (2016); Williams v.

10 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), regardless of whether his action is ultimately

11 dismissed. See 28 U.S.C. §§ 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th

12 Cir. 2002).

13 Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a

14 “certified copy of the trust fund account statement (or institutional equivalent) for . . . the

15 6-month period immediately preceding the filing of the complaint.” 28 U.S.C.

16 § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified

17 trust account statement, the Court assesses an initial payment of 20% of (a) the average

18 monthly deposits in the account for the past six months, or (b) the average monthly balance

19 in the account for the past six months, whichever is greater, unless the prisoner has no

20 assets. See 28 U.S.C. §§ 1915(b)(1), (4). The institution having custody of the prisoner

21 then collects subsequent payments, assessed at 20% of the preceding month’s income, in

22 any month in which his account exceeds $10, and forwards those payments to the Court

23 until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See

27 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.

Oct. 1, 2019)). The additional $50 administrative fee does not apply to persons granted leave to proceed

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1 In support of his IFP Motion, Plaintiff has submitted a certified copy of his trust

2 account statement pursuant to 28 U.S.C. Section 1915(a)(2) and Civil Local Rule 3.2.

3 Andrews, 398 F.3d at 1119. The Court has reviewed Plaintiff’s trust account activity, as

4 well as the attached prison certificate verifying his available balances. (See ECF No. 3 at

5 1–4.) These documents show that Plaintiff carried an average monthly balance of $0.00,

6 had average monthly deposits to his trust account of $0.00 for the six months preceding the

7 filing of this action, and had an available balance of just $0.05 at the time of filing. (See

8 id. at 1.)

9 The Court therefore GRANTS Plaintiff’s Motion (ECF No. 2) and DECLINES to

10 impose the initial partial filing fee pursuant to 28 U.S.C. Section 1915(b)(1) because his

11 prison certificate indicates he may currently have “no means to pay it.” See 28 U.S.C.

12 § 1915(b)(4) (“In no event shall a prisoner be prohibited from bringing a civil action or

13 appealing a civil action or criminal judgment for the reason that the prisoner has no assets

14 and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d at 850

15 (finding that 28 U.S.C. Section 1915(b)(4) acts as a “safety-valve” preventing dismissal of

16 a prisoner’s IFP case based solely on a “failure to pay . . . due to the lack of funds available

17 to him when payment is ordered”). Instead, the Court DIRECTS the Secretary of the

18 CDCR, or her designee, to collect the entire $350 balance of the filing fees required by 28

19 U.S.C. Section 1914 and to forward them to the Clerk of the Court pursuant to the

20 installment payment provisions set forth in 28 U.S.C. Section 1915(b)(1).

21 SCREENING PURSUANT TO 28 U.S.C. SECTIONS 1915(e)(2) AND 1915A(b)

22 I. Standard of Review

23 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-

24 answer screening pursuant to 28 U.S.C. Section 1915(e)(2) and Section 1915A(b). Under

25 these statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion

26 of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

27 who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

28 (discussing 28 U.S.C. Section 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th

1 Cir. 2010) (discussing 28 U.S.C. Section 1915A(b)). “The purpose of [screening] is ‘to

2 ensure that the targets of frivolous or malicious suits need not bear the expense of

3 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler

4 v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

5 “The standard for determining whether a plaintiff has failed to state a claim upon

6 which relief can be granted under Section 1915(e)(2)(B)(ii) is the same as the Federal Rule

7 of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

8 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

9 Cir. 2012) (noting that screening pursuant to Section 1915A “incorporates the familiar

10 standard applied in the context of failure to state a claim under Federal Rule of Civil

11 Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual

12 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

13 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at

14 1121.

15 Detailed factual allegations are not required, but “[t]hreadbare recitals of the

16 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

17 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief

18 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

19 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

20 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

21 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

22 II. Plaintiff’s Factual Allegations

23 Plaintiff alleges that he experiences “partial & tonic seizures” and pain from nerve

24 damage as a result of injuries he sustained in an excessive force incident that occurred in

25 2007 or 2010. (See Compl. at 3 (“The [e]xcessive force occur[r]ed in Nov [sic] 2007,

26 2010.”).) In December 2018, Defendant Guldseth became Plaintiff’s primary care doctor.

27 (See id.) Plaintiff recounted for Dr. Guldseth the details of the excessive force incident and

28 his injuries; subsequent injuries he suffered as a result of seizures, diabetes, chronic pain,

1 and a suicide attempt; the medical treatment he received; and various issues with obtaining

2 medication either from prison staff or medical personnel. (See id. at 3–4.)

3 One medication, Gabapentin, is central to Plaintiff’s claims against Dr. Guldseth. In

4 2016, another doctor prescribed Gabapentin and another medication, Depakote, to address

5 Plaintiff’s seizures, nerve damage, and diabetic neuropathy. (See id. at 4.) Plaintiff told

6 Dr. Guldseth that this was “the only course of treatment effective to [his] serious medical

7 conditions without severe side effects.” (See id. at 4.) Plaintiff’s previous doctor

8 authorized increased doses of Gabapentin over time because Plaintiff’s “body got use[d]

9 to [the medication].” (See id.) Accordingly, although Plaintiff started with a daily dose of

10 600 mg of Gabapentin in 2016, by the time Dr. Guldseth became Plaintiff’s primary care

11 doctor he was taking 2000 mg per day. (See id.) With these increased doses, Plaintiff told

12 Dr. Guldseth that his pain was adequately managed but that “when pain is not control[led]

13 . . . it [doesn’t] let [him] sleep [and] it triggers seizures.” (Id.) According to Plaintiff, both

14 he and Dr. Guldseth agreed that the maximum potential daily dose of Gabapentin is 3600

15 mg. (See id.)

16 Despite that information, Dr. Guldseth apparently refused to prescribe more than

17 2000 mg of Gabapentin to Plaintiff for approximately six months. (See id. at 5.)

18 Dr. Guldseth “knew that [this dosage] wasn’t controlling [Plaintiff’s] pain,” preventing

19 Plaintiff from sleeping, walking, and exercising, and increasing the frequency of Plaintiff’s

20 seizures, which in turn increased the likelihood that Plaintiff would fall and be injured.

21 (See id.) When Plaintiff sought increased doses of Gabapentin, Dr. Guldseth allegedly

22 “punish[ed] [Plaintiff] by using needle poking for testing . . . only for the conclusion of

23 [the] test to reveal [Plaintiff] was taking [his] Gabapentin and no illicit drugs.” (Id.)

24 According to Plaintiff, this violates the Bane Act, California Civil Code Section 52.1,

25 which also allows him to hold the CDCR liable for Dr. Guldseth’s actions. (See id. at 8.)

26 Dr. Guldseth also told Plaintiff that the reason he was not increasing his dosage was

27 because Plaintiff filed too many medical forms and that it was more important “for his

28 higher personnel to see he’s not prescribing Gabapentin” than to address Plaintiff’s pain.

1 (See id. at 5.) Plaintiff alleges that this was retaliation for Plaintiff’s exercise of his First

2 Amendment rights by filing medical forms. (See id. at 8.) Additionally, Plaintiff notes

3 that he sought an alternative treatment but that Dr. Guldseth acknowledged that “Lyrica &

4 Gabapentin are almost [the] only type [of treatment] that reduce pain cause[d] by nerve

5 damage.” (Id. at 5.) Eventually, Plaintiff’s prescription was discontinued when he refused

6 a drug test that he alleges did not follow prison procedures. (See id.)

7 Plaintiff alleges that this sequence of events constituted deliberate indifference in

8 violation of his Eighth Amendment rights. (See id. at 6.) Additionally, Plaintiff alleges

9 that Dr. Guldseth continued to prescribe high doses of Depakote to Plaintiff, even without

10 Gabapentin, despite knowing “that Depakote over 500 mg was intolerable due to suicidal

11 thoughts and stomach pain[ and] drowsiness leading to falls” and that “Depakote at 250

12 mg or without Gabapentin was ineffective [for] seizures.” (See id. at 7.) According to

13 Dr. Guldseth, this justified “his actions [o]n paper because it reveals he has [Plaintiff o]n

14 seizure medication although he knew it was in[]effective.” (See id.) The same was true of

15 Plaintiff’s prescription for a third medication, Cymbalta, which Plaintiff told Dr. Guldseth

16 had severe side effects and “put [his] health & life at risk.” (Id.) Dr. Guldseth ignored this

17 information, instead increasing Plaintiff’s dose. (See id.)

18 In addition to his Bane Act claim, Plaintiff contends that CCHCS is liable under

19 Monell v. Department of Social Services, 436 U.S. 658 (1978), for condoning

20 Dr. Guldseth’s denials of Plaintiff’s right to medical care. (See id. at 8.) Plaintiff alleges

21 that more than 20 administrative grievances have been denied despite Dr. Guldseth’s

22 insistence on an ineffective course of treatment. (See id. at 8–9.) According to Plaintiff, it

23 is “obvious that Headquarters condone[s] this type of [behavior] by its doctors.” (Id. at 9.)

24 Additionally, Plaintiff alleges that CDCR and CCHCS are liable under California

25 Government Code Sections 844.6 and 845.6 for failing to provide care for Plaintiff’s

26 serious medical conditions. (See id. at 9-10.)

27 Plaintiff’s remaining claims are leveled against Defendant Chief Medical Executive

28 S. Roberts. (See id. at 11.) Plaintiff alleges that he provided information to Defendant

1 Roberts about his course of treatment with Dr. Guldseth and, based on that information,

2 Roberts “should have recognize[d] that the deprivation of [Gabapentin] w[ould] trigger

3 severe pain and uncontrol[led] seizure[s]” leading to further health complications for

4 Plaintiff. (Id.) Although the sequence of events is somewhat unclear, Plaintiff evidently

5 wrote to Roberts asking him to intervene in Plaintiff’s treatment by Dr. Guldseth. (See id.)

6 Roberts then wrote back, “saying he w[ould not] intervene and for [Plaintiff] to file [a]

7 grievance.” (Id.) Plaintiff alleges that he submitted a grievance on December 23, 2019,

8 which still has not been addressed by Roberts.2 (See id.) In Plaintiff’s view, this failure to

9 intervene constitutes deliberate indifference and medical malpractice in violation of

10 California Government Code Section 845.6. (Id. at 12.) Plaintiff also seeks to hold the

11 CDCR liable pursuant to Section 845.6 “due to its employee[’s] fail[ure] to get medical

12 care.” (See id.) Plaintiff alleges that, as a result of Roberts’ inaction, he has suffered many

13 falls due to neuropathy and seizures and that he is experiencing severe pain that prevents

14 him from sleeping, walking, eating, or exercising. (See id.)

15 On October 13, 2020, Chief Judge Larry Alan Burns, to whom this case was

16 previously assigned, issued an order finding that this case is related to Arellano v. Jones,

17 No. 20-CV-228 (S.D. Cal.) pursuant to Civil Local Rule 40.1(g). (See ECF No. 5 at 2.)

18 Subsequently, both this case and Jones were reassigned to the undersigned for all further

19 proceedings. (See ECF No. 6 at 2.)

20 III. Analysis

21 To state a claim under 42 U.S.C. Section 1983, a plaintiff must allege two essential

22 elements: (1) that a right secured by the Constitution or laws of the United States was

23 violated, and (2) that the alleged violation was committed by a person acting under the

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2 Although it is not necessarily clear from the face of the Complaint, the Court notes that, if Plaintiff’s

27 grievance had not been addressed at the time Plaintiff filed his Complaint, Plaintiff’s claims may be

subject to an affirmative defense for failure to exhaust administrative remedies prior to filing his case. See

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1 color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Naffe v. Frye, 789 F.3d 1030,

2 1035-36 (9th Cir. 2015).

3 The Court finds that, with respect to his Eighth Amendment claims against

4 Dr. Guldseth, Plaintiff’s Complaint contains plausible allegations sufficient to surpass the

5 “low threshold” set for sua sponte screening required by 28 U.S.C. Sections 1915(e)(2)

6 and 1915A(b). See Iqbal, 556 U.S. at 678; Wilhelm, 680 F.3d at 1123; see also Estelle v.

7 Gamble, 429 U.S. 97, 104 (1976) (“[D]eliberate indifference to serious medical needs of

8 prisoners” violates the Eighth Amendment.”); Colwell v. Bannister, 763 F.3d 1060, 1066

9 (9th Cir. 2014) (“Deliberate indifference ‘may appear when prison officials deny, delay or

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

11 prison physicians provide medical care.’” (quoting Hutchinson v. United States, 838 F.2d

12 390, 394 (9th Cir. 1988))); Hardy v. Three Unknown Agents, 690 F. Supp. 2d 1074, 1092

13 (C.D. Cal. 2010) (noting that a plaintiff may state a claim for deliberate indifference when,

14 among other things, he alleges that a medical decision “was taken not in the exercise of

15 medical judgment, but for non-medical reasons” (citing Jackson v. McIntosh, 90 F.3d 330,

16 332 (9th Cir. 1996))).

17 The same is true of Plaintiff’s Bane Act and First Amendment retaliation claims

18 against Dr. Guldseth, which allege, among other things, that Dr. Guldseth ordered

19 excessive and retaliatory drug testing in response to Plaintiff’s requests for increased doses

20 of Gabapentin and refused to prescribe those increased doses for non-medical reasons,

21 including Dr. Guldseth’s view that Plaintiff had filed too many medical forms. (See Compl.

22 at 5.) These claims also survive screening pursuant to 28 U.S.C. Sections 1915(e)(2) and

23 1915A(b). See Applegate v. Nkwocha, No. 1:16-cv-00490-MJS (PC), 2016 WL 4126711,

24 at *6–7 (E.D. Cal. Aug. 3, 2016) (allegations of interference with the ability to file

25 grievances and right to medical care by threat of physical violence were sufficient to state

26 Bane Act and First Amendment retaliation claims); Miller v. Cal. Dep’t of Corrs., No.

27 3:16-cv-2431-EMC, 2016 WL 3418522, at *3–4 (N.D. Cal. June 22, 2016) (concluding

28 that pro se prisoner stated First Amendment retaliation and Bane Act claims against

1 medical personnel who allegedly denied proper medical care and threatened to continue

2 doing so in response to plaintiff’s complaints and grievances).

3 Plaintiff’s claim against Dr. Guldseth for medical malpractice pursuant to California

4 Government Code Section 845.6, however, must be dismissed. As California courts have

5 explained, Section 845.6 is “very narrowly written to authorize a cause of action against a

6 public entity for its employees’ failure to summon immediate medical care only, not for

7 certain employee’s malpractice in providing that care.” Castaneda v. Dep’t of Corr. &

8 Rehab., 212 Cal. App. 4th 1051, 1070 (2013) (emphasis added); see also Nelson v.

9 California, 139 Cal. App. 3d 72, 81 (1982) (“[F]ailure of a practitioner to prescribe or

10 provide necessary medication or treatment . . . is . . . medical malpractice and clearly, as a

11 matter of the plain meaning of the statutory language, cannot be characterized as a failure

12 to summon medical care.” (emphasis added)). Accordingly, Plaintiff’s Section 845.6 claim

13 against Defendant Guldseth is dismissed sua sponte for failure to state a claim pursuant to

14 28 U.S.C. Sections 1915(e)(2)(B) and 1915A(b). See Wilhelm, 680 F.3d at 1121; Lopez,

15 203 F.3d at 1126–27.

16 Plaintiff’s claims against the CDCR and CCHCS also must be dismissed. Plaintiff’s

17 Monell claim against CCHCS fails because the Eleventh Amendment bars the application

18 of Monell against a state or state entity. See Monell, 436 U.S. at 690–91 (“Our holding

19 today is, of course, limited to local government units[,] which are not considered part of

20 the State for Eleventh Amendment purposes.”); Rua v. Cal. Corr. Health Care Servs., No.

21 2:19-cv-6115-CJC-KES, 2019 WL 3741024, at *2 (C.D. Cal. Aug. 8, 2019) (“As an agency

22 of the State, the CDCR is entitled to Eleventh Amendment immunity, and so is CCHCS.”

23 (internal citation omitted) (citing Brown v. Cal. Dep’t of Corrs., 554 F.3d 747, 752 (9th

24 Cir. 2009); Gomes v. Mathis, No. CV 17-7022, 2018 WL 2085237, at *3 (C.D. Cal. May 3,

25 2018))).

26 Plaintiff’s remaining claims against both the CDCR and CCHCS fail for similar

27 reasons. As numerous other cases have concluded, California has not consented to suit in

28 federal court under the Bane Act or California Government Code Sections 844.6 and 845.6

1 and, as a result, both the CDCR and CCHCS are immune from damages claims in federal

2 court under these statutes pursuant to the Eleventh Amendment. See, e.g., Whiting v. Dep’t

3 of the Cal. Highway Patrol, No. EDCV 18-2652-CAS (JEM), 2020 WL 5753231, at *13

4 (C.D. Cal. Sept. 1, 2020) (“California has not consented to be sued in federal court under

5 the Bane Act.” (citations omitted)); M.B. III ex rel. Litem v. Cal. Dep’t Corrs. & Rehab.,

6 No. 2:17-cv-2395 WBS DB, 2018 WL 5024093, at *1 (E.D. Cal. Oct. 16, 2018)

7 (dismissing on Eleventh Amendment grounds claim against CDCR for failure to summon

8 medical care pursuant to California Government Code Sections 844.6 and 845.6); Allen v.

9 Cal. Dep’t of Corrs. & Rehab., No. 1:09-cv-00767-AWI-GSA, 2009 WL 4163510, at *3

10 (E.D. Cal. Nov. 23) (recommending dismissal of attempt “to pursue CDCR on a pendent

11 state law claim under California Government Code section 845.6” as barred by Eleventh

12 Amendment), report & recommendation adopted 2009 WL 5197855 (E.D. Cal. Dec. 23,

13 2009). For these reasons, the Court dismisses Plaintiff’s claims against Defendants CDCR

14 and CCHCS in their entirety for failure to state a claim and for seeking money damages

15 against immune defendants. See 28 U.S.C. §§ 1915(e)(2), 1915A(b).

16 All that remain are Plaintiff’s claims against Defendant Roberts for violations of the

17 Eighth Amendment, Bane Act, and California Government Code Section 845.6. (See

18 Compl. at 11.) The Court finds that Plaintiff’s Eighth Amendment claim against Defendant

19 Roberts is sufficient to surpass the “low threshold” set for sua sponte screening required

20 by 28 U.S.C. Sections 1915(e)(2) and 1915A(b). See Iqbal, 556 U.S. at 678; Wilhelm, 680

21 F.3d at 1123; see also Pogue v. Igbinosa, No. 1:07CV-01577-GMS, 2012 WL 603230, at

22 *9 (E.D. Cal. Feb. 23, 2012) (“The emerging consensus . . . is that a medically-trained

23 official who reviews and denies an appeal is liable under the Eighth Amendment when a

24 plaintiff can show that the official knew, at least in part, from reading the appeal that the

25 plaintiff had a serious medical issue and nevertheless chose not to offer treatment.”).

26 The remaining claims against Defendant Roberts must be dismissed, however, for

27 failure to state a claim. Unlike Defendant Guldseth, Plaintiff has alleged only that

28 Defendant Roberts failed to intervene in his treatment. Plaintiff cannot state a Bane Act

1 claim against Defendant Roberts for failure to intervene, at least in the absence of the

2 “threats, intimidation, or coercion” by Roberts, which are not alleged in the Complaint.

3 See Cal. Civ. Code § 52.1; see also Marconi v. Officer One, No. C 05-1978 CW, 2006 WL

4 2827862, at *9 (N.D. Cal. Oct. 3, 2006) (“Although there is authority establishing liability

5 for an individual who fails to intervene under § 1983, there is no authority for imposing

6 liability . . . under the Bane or Ralph Acts for failure to intervene.”). And Plaintiff’s claim

7 under Section 845.6 must be dismissed for the same reason his similar claim against

8 Defendant Guldseth was dismissed—medical malpractice alone does not violate Section

9 845.6, and the conduct Plaintiff currently alleges cannot be characterized as the kind of

10 failure to summon medical care that would violate the statute. See Castaneda, 212 Cal.

11 App. 4th at 1070; Nelson, 139 Cal. App. 3d at 81. Accordingly, Plaintiff’s Bane Act and

12 Section 845.6 claims against Defendant Roberts are dismissed sua sponte for failure to

13 state a claim. See 28 U.S.C. §§ 1915(e)(2); 1915A(b).

14 IV. Leave to Amend

15 Because the Court has determined that some of Plaintiff’s claims survive the sua

16 sponte screening process, the Court will give Plaintiff the opportunity either: (1) to notify

17 the Court of his intent to proceed with his Eighth Amendment, Bane Act, and First

18 Amendment claims against Defendant Guldseth and his Eighth Amendment claim against

19 Defendant Roberts only; or (2) to file an amended pleading correcting the deficiencies in

20 his initial Complaint identified in this Order, if he can. Plaintiff must choose one of these

21 options within forty-five (45) days from the date this Order is filed. If Plaintiff choses to

22 proceed only as to the claims against Defendants Guldseth and Roberts that survived

23 screening, the Court will issue an Order directing the U.S. Marshal to effect service of

24 Plaintiff’s Complaint on Defendants Guldseth and Roberts at that time and dismiss the

25 remaining claims and Defendants.

26 / / /

27 / / /

28 / / /

1 CONCLUSION

2 Good cause appearing, the Court:

3 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. Section

4 1915(a) (ECF No. 2);

5 2. ORDERS the Secretary of the CDCR, or her designee, to collect from

6 Plaintiff’s prison trust account the $350 filing fee owed by collecting monthly payments

7 from Plaintiff’s account in an amount equal to twenty percent (20%) of the preceding

8 month’s income and forwarding those payments to the Clerk of the Court each time the

9 amount in the account exceeds $10 pursuant to 28 U.S.C. Section 1915(b)(2), with ALL

10 PAYMENTS TO BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

11 ASSIGNED TO THIS ACTION;

12 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Kathleen

13 Allison, Secretary, California Department of Corrections and Rehabilitation, P.O. Box

14 942883, Sacramento, California 94283-0001;

15 4. DISMISSES WITHOUT PREJUDICE all claims against the CDCR and

16 CCHCS for failure to state a claim and for seeking money damages against immune

17 defendants pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A(b);

18 5. DISMISSES WITHOUT PREJUDICE Plaintiff’s California Government

19 Code Section 845.6 claims against Defendants Guldseth and Roberts and Plaintiff’s Bane

20 Act claim against Defendant Roberts for failure to state a claim pursuant to 28 U.S.C.

21 Sections 1915(e)(2) and 1915A(b); and

22 6. GRANTS Plaintiff forty-five (45) days’ leave from the date of this Order in

23 which either to (1) notify the Court of his intention to proceed only with the claims that

24 survived sua sponte screening; or (2) file an amended complaint that cures the deficiencies

25 of pleading noted above. Any amended complaint must be complete by itself without

26 reference to his original pleading, and any Defendants not named and any claim not re-

27 alleged in Plaintiff’s amended complaint will be considered waived. See S.D. Cal. Civ.

28 L.R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th

1 || Cir. 1989) (‘[A]n amended pleading supersedes the original.”); see also Lacey v. Maricopa

2 || Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend

3 || that are not re-alleged in an amended pleading may be “considered waived’’).

4 IT IS SO ORDERED.

5

6 || Dated: October 30, 2020 ——

7 | 99> (2 re

g Honorable Todd W. Robinson

9 United States District Court

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