The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 THETHESIUS HOSEA MOSLEY, Case No. 1:26-cv-00670-BAM (PC)
12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE TO
13 v. ACTION
14 SINGH, et al., FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
15 Defendants.
(ECF No. 9)
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FOURTEEN (14) DAY DEADLINE
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18 Plaintiff Thethesius Hosea Mosley (“Plaintiff”) is a state prisoner proceeding pro se and in
19 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 3, 2026, the
20 Court screened Plaintiff’s complaint and granted him leave to amend. (ECF No. 8.) Plaintiff’s
21 first amended complaint, filed on July 10, 2026, is currently before the Court for screening. (ECF
22 No. 9.)
23 I. Screening Requirement and Standard
24 The Court is required to screen complaints brought by prisoners seeking relief against a
25 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.
26 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous
27 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
28 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).
1 A complaint must contain “a short and plain statement of the claim showing that the
2 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as
6 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,
7 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
8 To survive screening, Plaintiff’s claims must be facially plausible, which requires
9 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable
10 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret
11 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully
12 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility
13 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
14 II. Plaintiff’s Allegations
15 Plaintiff is currently housed at Kern Valley State Prison (KVSP), in Delano, California,
16 where the events in the amended complaint are alleged to have occurred. Plaintiff names Dr.
17 Chen Ho, Primary Care Provider, as the sole defendant.
18 In Claim I, Plaintiff asserts delay and denial of medical treatment in violation of his
19 Eighth Amendment rights. Plaintiff alleges: Over the course of nine years, a myriad of primary
20 care providers have come and gone since 10/18/2018. Dr. Chen Ho became aware of Plaintiff’s
21 degenerative bone disease. As Plaintiff’s condition gradually worsened, he could no longer walk
22 long distance or stand for over thirty minutes without the assistance of a hand cane, ordered
23 around 12/2/2021. Plaintiff’s condition deteriorated to the point that a hand cane was no longer
24 sufficient. Around 2/10/2022, a standard walker was ordered and issued. Plaintiff’s condition
25 accelerated at an alarming rate and all conservative measures failed. Around 3/30/2022, Plaintiff
26 went to bed and the next day he needed help. His lower back, hands, and arms were useless.
27 Plaintiff had no grip strength, zero back muscle function, and could not lift his right shoulder.
28 Plaintiff first thought it was a stroke, but that was not the case. Plaintiff was provided a Medrol
1 dosepak prednisone. His condition continued to deteriorate. He filed grievances and reasonable
2 accommodations forms. On 4/7/2022, after several months elapsed, Plaintiff was given a
3 “medical copy exact with information on this exhibit date 10/21/22 clearance for surgery.” (ECF
4 No. 9 at 4.) Plaintiff claims that this was the first of many failures to treat his serious medical
5 need for corrective treatment. Dr. Chen Ho’s inaction allegedly caused Plaintiff to suffer further
6 significant injury. Dr. Chen Ho “had an . . . extensive amount of reviewing first hand of
7 decision(s), courses of acceptable procedures surgeries,” and as primary care physician, “he
8 signed off and gave [agreement], yet stop[ped] all treatment.” (Id.)
9 Plaintiff further alleges that for a period of six months, starting 2/7/2025, he received no
10 treatment and no medications. Plaintiff’s means that his clearance and authorization for
11 rhizotomy surgery, which Dr. Chen Ho delayed forwarding the dossier to be processed to his
12 Chief Physician Supervisor and the Chief Medical Executive. The same denial for treatment
13 occurred after months of filing and trying to be diplomatic, which the doctor ignored and
14 continued to cease all communication pertaining to rescheduling. Plaintiff filed a health care
15 grievance on 5/26/2025. During this period of time, Plaintiff’s neck became stiff, swollen, and
16 sore. He was provided with no care, and his condition caused him more suffering and pain
17 without medical treatment. Plaintiff was transferred out on 6/19/2025. He returned on 2/13/2026
18 and was reassigned Dr. Chen Ho. Under his care, Plaintiff has experienced the exact same hang
19 up. Plaintiff contends that the failure of Dr. Chen Ho has caused delay of the neurologist
20 performing the procedure and readying the informative details that are needed in order for the
21 neurosurgeon to provide surgery. On 4/3/2026, Plaintiff went to the clinic, only to be informed
22 by the neurologist that there was no consultation dossier to provide the reason why Plaintiff was
23 there at the clinic and what needed to be performed. Plaintiff was again left without treatment,
24 his suffering and pain worsened, and it pushed back all other scheduling dates.
25 On May 13, 2026, Plaintiff returned to the neurologist only to discover the procedure was
26 unsuccessful and his spine narrowing had worsened since the eighteen-month lapse from the last
27 imaging, “which neurologist Rahimanfir provide my primary care [provider] Doctor Chen Ho
28 with recommendation from his consultation examination of the aforemention medical procedure.”
1 (ECF No. 9 at 7.) The neurologist faxed consultation notes detailing the resolution, which was
2 that their facility was not equipped with such device and in order for Plaintiff to get the corrective
3 treatment. Dr. Chen Ho failed to inform the Chief Physician & Surgeon Supervisor and the Chief
4 Medical Executive of the request for service. Plaintiff again went to the Bakersfield neuroscience
5 complex on 6/26/2026. The neurosurgeon informed Plaintiff of the consultation notes detailing
6 the expected collaboration. Again, Dr. Chen Ho ignored the plea to forward the actual cervical
7 spine and CT scan. Plaintiff alleges:
8 As my condition without any type of pain medication provided while under Doctor
Chen Ho care it is like not actually [having] a health care doctor, only thing is your
9 pain increases, condition as the swelling of my cervical and the [inflammation] of
my entire body with a doctor who does nothing but look on as if he is at a cross
10 road and that my condition will end without course of treatment to my back, neck
seems [causing] my blood pressure to fluctuate.
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(ECF No. 9 at 7.) Dr. Chen Ho has assured Plaintiff his degenerative bone disease is only acute
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and will heal on its own and will not discuss the issue of bone disease.
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Plaintiff seeks injunctive relief and monetary damages.
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III. Discussion
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A. Federal Rule of Civil Procedure 8
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Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain
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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed
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factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation
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omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to
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relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570,
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127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are not. Id.;
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see also Twombly, 550 U.S. at 556–557.
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Plaintiff’s amended complaint is not a short and plain statement of his claims. As with his
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original complaint, Plaintiff’s amended complaint is difficult to understand. He fails to clearly
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and succinctly allege what happened, when it happened, and who was involved. The allegations
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are disjointed and conclusory, such that the Court is unable to conclude that Plaintiff states a
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1 cognizable claim for relief. Plaintiff’s amended complaint does not include factual allegations to
2 support an Eighth Amendment claim against Defendant Ho. Plaintiff alludes to treatment delays,
3 lack of medication, and the failure to provide scan results to a neurosurgeon, but these conclusory
4 allegations, without more, are not sufficient to state a claim that is plausible on its face.
5 B. Linkage Requirement
6 The Civil Rights Act under which this action was filed provides:
7 Every person who, under color of [state law] . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights, privileges, or
8 immunities secured by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress.
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10 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between
11 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See
12 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The
13 Ninth Circuit has held that “[a] person ‘subjects another to the deprivation of a constitutional
14 right, within the meaning of section 1983, if he does an affirmative act, participates in another’s
15 affirmative acts or omits to perform an act which he is legally required to do that causes the
16 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
17 Plaintiff’s amended complaint fails to adequately link Defendant Dr. Ho to violations of
18 his constitutional rights. Plaintiff fails to include clear factual allegations specifying what
19 Defendant Dr. Ho did or did not do that resulted in a violation of his constitutional rights.
20 Plaintiff’s conclusory allegations are not sufficient.
21 C. Eighth Amendment – Medical Care
22 A prisoner’s claim of inadequate medical care constitutes cruel and unusual punishment in
23 violation of the Eighth Amendment where the mistreatment rises to the level of “deliberate
24 indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)
25 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate
26 indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure
27 to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and
28 wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately
1 indifferent.” Jett, 439 F.3d at 1096.
2 A defendant does not act in a deliberately indifferent manner unless the defendant “knows
3 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825,
4 837 (1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609
5 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is
6 shown where there was “a purposeful act or failure to respond to a prisoner’s pain or possible
7 medical need” and the indifference caused harm. Jett, 439 F.3d at 1096. In applying this
8 standard, the Ninth Circuit has held that before it can be said that a prisoner’s civil rights have
9 been abridged, “the indifference to his medical needs must be substantial. Mere ‘indifference,’
10 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter
11 Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105–06). Even gross
12 negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood
13 v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
14 Further, a “difference of opinion between a physician and the prisoner—or between
15 medical professionals—concerning what medical care is appropriate does not amount to
16 deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v.
17 Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard,
18 744 F.3d 1076, 1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir.
19 2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must
20 show that the course of treatment the doctors chose was medically unacceptable under the
21 circumstances and that the defendants chose this course in conscious disregard of an excessive
22 risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation
23 marks omitted).
24 Plaintiff’s amended complaint fails to state a cognizable claim for deliberate indifference
25 to a serious medical need against Defendant Dr. Chen Ho. Plaintiff fails to adequately allege
26 what Defendant Dr. Ho did or did not do that resulted in a violation of Plaintiff’s Eighth
27 Amendment rights. Plaintiff variously alleges delays and denials of treatment and medication,
28 including that Dr. Ho delayed forwarding the dossier to be processed for his rhizotomy surgery.
1 However, according to the exhibits attached to the amended complaint, a cervical rhizotomy was
2 recommended on January 23, 2025. (ECF No. 9 at 11, 23.) Following his appointment with the
3 neurosurgeon, Plaintiff then saw Dr. Ho on February 7, 2025, where it was noted that the
4 recommended rhizotomy and surgery risks had been discussed, Plaintiff expressed he would like
5 to go for surgery, and Plaintiff had been provided a Medrol dosepak “in the mean time.” (Id. at
6 23.) Plaintiff also was noted to be taking gabapentin for his symptoms. (Id.) As of March 14,
7 2025, Plaintiff had a pending RFS for cervical rhizotomy and a pending appointment with
8 neurosurgery for a cervical rhizotomy. (Id. at 11-12.) And, as of June 5, 2025, the
9 recommendation and referral for services for the cervical rhizotomy had been submitted,
10 approved and was awaiting scheduling, and Plaintiff had a pending neurosurgery appointment.
11 (ECF No. 9 at 27.) Yet, according to Plaintiff’s allegations, he was transferred out from KVSP on
12 June 19, 2025,1 and did not return until February 13, 2026. (Id. at 5.) Plaintiff was subsequently
13 seen by a neurologist on 4/3/2026, 5/13/2026, and 6/26/2026. (Id. at 5, 7.) Taken together, these
14 allegations do not demonstrate deliberate indifference to a serious medical need by Dr. Ho.
15 Plaintiff complains that Dr. Ho ignored a plea to forward Plaintiff’s scans to the neurosurgeon,
16 but this also is not sufficient to support a claim for deliberate indifference to serious medical
17 needs, and, at best, demonstrates negligence.
18 IV. Conclusion and Recommendation
19 Plaintiff’s amended complaint fails to comply with Federal Rule of Civil Procedure 8 and
20 fails to state a cognizable claim under 42 U.S.C. § 1983. Despite being provided with the
21 relevant pleading and legal standards, Plaintiff has been unable to cure the deficiencies. Further
22 leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
23 Accordingly, the Court HEREBY DIRECTS the Clerk of the Court to randomly assign a
24 district judge to this action.
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1 Plaintiff included treatment notes from the California Substance Abuse Treatment Facility,
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which Plaintiff dated “05/28/2025.” (ECF No. 9 at 20.) Those notes indicate Plaintiff’s previous
27 neurosurgeon was no longer in practice and Plaintiff had to reestablish with neurosurgery.
Plaintiff was to continue his current pain management regimen and follow-up with neurosurgery
28 for further evaluation. (Id.)
1 Further, for the reasons stated above, it is HEREBY RECOMMENDED that this action be
2 dismissed for failure to state a cognizable claim upon which relief may be granted.
3 These Findings and Recommendations will be submitted to the United States District
4 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within
5 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may
6 file written objections with the court. The document should be captioned “Objections to
7 Magistrate Judge’s Findings and Recommendations.” Objections, if any, shall not exceed
8 fifteen (15) pages or include exhibits. Exhibits may be referenced by document and page
9 number if already in the record before the Court. Any pages filed in excess of the 15-page
10 limit may not be considered. Plaintiff is advised that failure to file objections within the
11 specified time may result in the waiver of the “right to challenge the magistrate’s factual
12 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter
13 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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16 Dated: July 16, 2026 /s/ Barbara A. McAuliffe _
UNITED STATES MAGISTRATE JUDGE
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