The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 MICHAEL H. ODELL, Case No. 1:26-cv-01914-KES-BAM (PC)
12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION, WITH PREJUDICE, FOR
13 v. FAILURE TO STATE A CLAIM, FAILURE
TO OBEY A COURT ORDER, AND
14 IDALBERTO ZALDIVAR-GALVES, FAILURE TO PROSECUTE
15 Defendant. (ECF No. 11)
16 FOURTEEN (14) DAY DEADLINE
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18 I. Background
19 Plaintiff Michael H. Odell (“Plaintiff”) is a state prisoner proceeding pro se and in forma
20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
21 On July 17, 2026, the Court screened Plaintiff’s first amended complaint and found that it
22 failed to comply with Federal Rule of Civil Procedure 8 and failed to state a cognizable claim for
23 relief. (ECF No. 11.) The Court granted Plaintiff leave to file a second amended complaint or
24 notice of voluntary dismissal within 30 days. (Id.) The Court expressly warned Plaintiff that
25 failure to comply with the Court’s order would result in a recommendation for dismissal of this
26 action, with prejudice, for failure to state a claim, failure to obey a court order, and for failure to
27 prosecute. (Id.)
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1 On August 12, 2026, in lieu of filing an amended complaint, Plaintiff filed a notice, which
2 the Court construed as a motion for recusal of magistrate judge. (ECF No. 12.) The Court denied
3 the motion on August 18, 2026. (ECF No. 13.)
4 Plaintiff has failed to file an amended complaint, and the time in which to do so has
5 expired.
6 II. Failure to State a Claim
7 A. Screening Requirement and Standard
8 The Court is required to screen complaints brought by prisoners seeking relief against a
9 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.
10 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous
11 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
12 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).
13 A complaint must contain “a short and plain statement of the claim showing that the
14 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
15 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
16 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
17 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as
18 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,
19 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
20 To survive screening, Plaintiff’s claims must be facially plausible, which requires
21 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable
22 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret
23 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully
24 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility
25 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
26 B. Plaintiff’s Allegations
27 Plaintiff is currently housed at the California Substance Abuse Treatment Facility
28 (“SATF”), where the events in the amended complaint are alleged to have occurred. Plaintiff
1 names the following defendants: (1) Licensed Vocational Nurse (“LVN”) Bolivar; and (2) LVN
2 Tamale.
3 Plaintiff alleges that he was denied medical treatment by the named defendants for ten
4 days as he coughed up quantities of blood, sputum, displayed acute respiratory distress with
5 pursed lips, flared nostrils, and cyanotic skin color, begging nursing staff at the SATF medical
6 clinic in yard F for medical attention to his immediate life-threatening situation. He was ignored
7 by the named defendants. The result was eventually emergency hospitalization for life-
8 threatening respiratory distress, pneumonia, and isolated for potential tuberculosis.
9 Plaintiff further alleges that on or about November 25, 2024, and continuing unabated and
10 untreated by state prison medical staff, Plaintiff suffered injury, life-threatening respiratory
11 distress for ten days. No medical treatment was provided to Plaintiff, and no physical assessment,
12 no vital signs, no notification to supervisors, superiors, physicians, although available.
13 Defendants each ignored Plaintiff’s acute, life-threatening distress for ten days. Plaintiff was
14 informed to properly fill out a Form 7362 Medical Request to be seen within three weeks. Each
15 day, for ten days, Plaintiff journeyed to the medical clinic at SATF on yard F in greater acute
16 respiratory distress, color of skin was cyanotic (bluish), nasal flaring, pursed lips, coughing up
17 blood, very labored breathing, all staff observed. Plaintiff’s life was in dire jeopardy, ignored.
18 Yet staff defendants kept handing Plaintiff medical forms to be filled out and seen in “about three
19 weeks.” Plaintiff was only met with, “You faking it,” “You’re making yourself cough up blood.”
20 A professional, licensed nursing response to a prisoner.
21 On December 4, 2024, Plaintiff was finally transported via ambulance from SATF to the
22 emergency room at Adventist Medical Center in Bakersfield, California. Plaintiff spent his
23 hospitalization at Adventist Medical Center in isolation for life-threatening pneumonia, possible
24 tuberculosis, coughing up and loss of blood, acute respiratory distress, pain, suffering, and
25 emotional distress, conditions that a reasonable medical, licensed professional would necessitate
26 medical treatment/notice to supervisors and primary care physician. The two defendants ignored
27 their individual licensed duty pursuant to the Nurse Practice Act, causing additional pain and
28 suffering.
1 Plaintiff clams that defendants acted with deliberate indifference in ignoring and not
2 reporting or asking for help when each defendant had been advised for ten straight days of
3 Plaintiff’s life-threatening condition. Plaintiff asserts that each defendant knowingly,
4 intentionally, and maliciously violated the Eighth Amendment protected right prohibiting cruel
5 and unusual punishment and the Fourteenth Amendment’s due process, equal protection of the
6 law (5th Amend for federal cases). Plaintiff further asserts that Defendants’ wanton failure and
7 disregard to help Plaintiff, examine, report, treat the Plaintiff’s visibly noticed health-physical
8 life-threatening deterioration cannot be overlooked or dismissed as frivolous.
9 As relief, Plaintiff seeks compensatory and punitive damages.
10 C. Discussion
11 Federal Rule of Civil Procedure 8
12 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain
13 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). Detailed
14 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,
15 supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation
16 omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim to
17 relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570,
18 127 S.Ct. at 1974). While factual allegations are accepted as true, legal conclusions are not. Id.;
19 see also Twombly, 550 U.S. at 556–557.
20 Plaintiff’s amended complaint is short, but it is not a plain statement of his claims.
21 Plaintiff does not clearly allege what each individually named defendant did or did not do that
22 violated his rights. Plaintiff does not clearly state what happened, when it happened, and who
23 was involved, lumping defendants together and failing to include factual allegations to state a
24 claim against each individual defendant. Plaintiff’s conclusory statements are not sufficient to
25 state a cognizable claim for relief.
26 Linkage Requirement
27 The Civil Rights Act under which this action was filed provides:
28 Every person who, under color of [state law] . . . subjects, or causes to be subjected,
1 any citizen of the United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution . . . shall be liable to the party injured in an
2 action at law, suit in equity, or other proper proceeding for redress.
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42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between
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the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See
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Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The
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Ninth Circuit has held that “[a] person ‘subjects another to the deprivation of a constitutional
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right, within the meaning of section 1983, if he does an affirmative act, participates in another’s
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affirmative acts or omits to perform an act which he is legally required to do that causes the
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deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
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Plaintiff’s amended complaint fails to adequately link defendants to any action or
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omission alleged to have violated his rights. Plaintiff may not simply lump the LVN defendants
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together in his allegations, claiming they denied him medical care or handed him medical forms.
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Rather, Plaintiff must link each individual defendant to a specific act or omission that violated
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Plaintiff’s rights, not simply lump defendants together in his allegations. Plaintiff must allege
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factual support for what each individual defendant did or did not do that violated Plaintiff's rights.
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Eighth Amendment – Deliberate Indifference
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Although Plaintiff alleges violations of the Fourteenth Amendment, a prisoner’s claim of
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inadequate medical care constitutes cruel and unusual punishment in violation of the Eighth
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Amendment where the mistreatment rises to the level of “deliberate indifference to serious
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medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble,
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429 U.S. 97, 104 (1976)). The two-part test for deliberate indifference requires Plaintiff to show
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(1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner’s condition could
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result in further significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2) “the
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defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096.
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A defendant does not act in a deliberately indifferent manner unless the defendant “knows
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of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825,
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837 (1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609
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1 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is
2 shown where there was “a purposeful act or failure to respond to a prisoner’s pain or possible
3 medical need” and the indifference caused harm. Jett, 439 F.3d at 1096. In applying this
4 standard, the Ninth Circuit has held that before it can be said that a prisoner’s civil rights have
5 been abridged, “the indifference to his medical needs must be substantial. Mere ‘indifference,’
6 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter
7 Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105–06). Even gross
8 negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood
9 v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
10 Further, a “difference of opinion between a physician and the prisoner—or between
11 medical professionals—concerning what medical care is appropriate does not amount to
12 deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v.
13 Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard,
14 744 F.3d 1076, 1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir.
15 2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must
16 show that the course of treatment the doctors chose was medically unacceptable under the
17 circumstances and that the defendants chose this course in conscious disregard of an excessive
18 risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation
19 marks omitted).
20 As currently pled, Plaintiff’s amended complaint does not state a claim for deliberate
21 indifference to a serious medical need. Plaintiff does not adequately allege that the LVN
22 defendants knew of and disregarded an excessive risk to his health or safety. Plaintiff lumps
23 defendants together, lumps the events of ten days together, and lumps the actions or omissions of
24 defendants together. This is not sufficient to state a cognizable claim. Further, according to
25 Plaintiff’s allegations, Plaintiff was believed to be faking his condition or making himself cough
26 up blood, suggesting gross negligence by defendants, not deliberate indifference to a serious
27 medical need.
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1 Fourteenth Amendment - Equal Protection
2 The Fourteenth Amendment’s Equal Protection Clause requires the State to treat all
3 similarly situated people equally. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
4 (1985) (citation omitted). An equal protection claim may be established by showing that
5 defendants intentionally discriminated against a plaintiff based on his membership in a protected
6 class, Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 702– 03 (9th Cir.
7 2009); Serrano v. Francis, 345 F.3d 1071,1082 (9th Cir. 2003), or that similarly situated
8 individuals were intentionally treated differently without a rational relationship to a legitimate
9 state purpose, Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 601–02 (2008); Village of
10 Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580,
11 592 (9th Cir. 2008).
12 Plaintiff’s amended complaint fails to state an equal protection claim. Plaintiff does not
13 allege that defendants intentionally discriminated against him based on his membership in a
14 protected class or that similarly situated individuals were intentionally treated differently without
15 a rational relationship to a legitimate state purpose.
16 Fourteenth Amendment - Due Process1
17 The nature of Plaintiff’s Fourteenth Amendment due process claim is unclear. “The
18 Fourteenth Amendment's Due Process Clause protects persons against deprivations of life,
19 liberty, or property; and those who seek to invoke its procedural protection must establish that
20 one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The due process
21 clause of the Fourteenth Amendment confers both substantive and procedural protections.
22 Albright v. Oliver, 510 U.S. 266, 272 (1994). As noted above, Plaintiff’s claim of inadequate
23 medical care arises under the Eighth Amendment, not Fourteenth Amendment.
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25 1 Although not entirely clear, Plaintiff appears to assert a violation of the Fifth Amendment due
process clause. The Fifth Amendment’s due process clause only applies to the federal
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government. Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008). Since Plaintiff is not
27 proceeding against any federal government employees, he is unable to state a cognizable claim
for violation of his rights under the Fifth Amendment.
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1 III. Failure to Prosecute and Failure to Obey a Court Order
2 A. Legal Standard
3 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with
4 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . .
5 within the inherent power of the Court.” District courts have the inherent power to control their
6 dockets and “[i]n the exercise of that power they may impose sanctions including, where
7 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A
8 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,
9 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46
10 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,
11 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring
12 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987)
13 (dismissal for failure to comply with court order).
14 In determining whether to dismiss an action, the Court must consider several factors:
15 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its
16 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of
17 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779
18 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).
19 B. Discussion
20 Here, Plaintiff’s second amended complaint is overdue, and he has failed to comply with
21 the Court’s order. The Court cannot effectively manage its docket if Plaintiff ceases litigating his
22 case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal.
23 The third factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a
24 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.
25 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against
26 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d
27 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose
28 responsibility it is to move a case toward disposition on the merits but whose conduct impedes
1 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products
2 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted).
3 Finally, the Court’s warning to a party that failure to obey the court’s order will result in
4 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262;
5 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s July 17, 2026 screening order
6 expressly warned Plaintiff that his failure to file an amended complaint would result in a
7 recommendation for dismissal of this action with prejudice. (ECF No. 11.) Thus, Plaintiff had
8 adequate warning that dismissal could result from his noncompliance.
9 Additionally, at this stage in the proceedings there is little available to the Court that
10 would constitute a satisfactory lesser sanction while protecting the Court from further
11 unnecessary expenditure of its scarce resources. As Plaintiff is proceeding in forma pauperis in
12 this action, it appears that monetary sanctions will be of little use and the preclusion of evidence
13 or witnesses is likely to have no effect given that Plaintiff has ceased litigating his case.
14 IV. Conclusion and Recommendation
15 Accordingly, the Court finds that dismissal is the appropriate sanction and HEREBY
16 RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim
17 pursuant to 28 U.S.C. § 1915A, for failure to obey a court order, and for Plaintiff’s failure to
18 prosecute this action.
19 These Findings and Recommendations will be submitted to the United States District
20 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within
21 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may
22 file written objections with the court. The document should be captioned “Objections to
23 Magistrate Judge’s Findings and Recommendations.” Objections, if any, shall not exceed
24 fifteen (15) pages. Any pages filed in excess of the 15-page limit may not be
25 considered. Exhibits shall not be filed with objections, but they may be referenced by the
26 document and page number. No new exhibits may be filed with objections. Plaintiff is
27 advised that failure to file objections within the specified time may result in the waiver of the
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1 “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d
2 834, 838–39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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Dated: August 26, 2026 /s/ Barbara A. McAuliffe _
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UNITED STATES MAGISTRATE JUDGE
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