Opinion

Damon Witherbee v. Dan Dow

Court
District Court, C.D. California
Filed
Aug 9, 2022
Cited by
0 cases
Authority
More cited than 16.4%

granting relief because plaintiff had 9 presented “hundreds of pages of court records from cases where [the officer] had 10 committed misconduct, either by lying under oath or by violating suspects’ Miranda 11 and other constitutional rights”

How later courts described this case

  • granting relief because plaintiff had 9 presented “hundreds of pages of court records from cases where [the officer] had 10 committed misconduct, either by lying under oath or by violating suspects’ Miranda 11 and other constitutional rights”
  • “State 4 officials must be sued in their individual capacity in an action for monetary 5 damages.”
  • “if a constitutional claim is covered by a specific constitutional provision, such as the . . . Eighth 27 | Amendment, the claim must be analyzed under the standard appropriate to that specific provision, 5g | not under the rubric of substantive due process”
  • denying plaintiff’s claims 16 for failing to satisfy Rule 8 where he failed to allege these elements as instructed by 17 the district court

Written by the judges who cited it.

The opinion

Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 1 of 49 Page ID #:90

1

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3

UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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7

DAMON WITHERBEE, Case No. 2:22-cv-2027-MWF (MAR)

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Plaintiff,

9

v. ORDER DISMISSING FIRST

10 AMENDED COMPLAINT WITH

DAN DOW, ET AL., LEAVE TO AMEND

11

Defendants.

12

13

14 I.

15 INTRODUCTION

16 On July 10, 2022, Damon Lloyd Witherbee (“Plaintiff”), proceeding pro se,

17 constructively filed1 the instant First Amended Complaint (“FAC”). ECF Docket No.

18 (“Dkt.”) 11 at 1, 6. For the reasons discussed below, the Court dismisses the FAC

19 with leave to amend.

20 If Plaintiff desires to pursue this action, he is ORDERED to respond by

21 no later than September 5, 2022, by choosing one of the three (3) options

22 discussed in Part V, below. Further, Plaintiff is admonished that, if he fails to

23 timely respond, the Court will recommend that this action be dismissed without

24 further leave to amend and with prejudice for failure to state a claim and follow the

25 Court’s orders.

26

27 1 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to

court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v.

28 Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103,

1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”).

Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 2 of 49 Page ID #:91

1 II.

2 SUMMARY OF THE COMPLAINT

3 A. Factual allegations

4 Plaintiff, currently an inmate at Mule Creek State Prison, constructively filed a

5 First Amended Complaint that when liberally construed appears to bring claims under

6 42 U.S.C. § 19832 for excessive force and inadequate medical care. Id. at 3–4.

7 Plaintiff brings claims against Dan Dow, a district attorney; the San Luis Obispo

8 County Sherriff; Does 1–10, unidentified sheriffs at the San Luis Obispo County Jail;

9 J. Tonani, a correctional officer at Norco State Prison (“NSP”); and Bell, a

10 correctional officer at Mule Creek State Prison (“MCSP”) (collectively “Defendants”).

11 Id.

12 Plaintiff alleges the following: Dow put Plaintiff’s life at risk by “not listening

13 to [his] pleas about [his] health.” Id. at 3. The San Luis Obispo County Sheriff

14 forcibly clamped handcuffs on Plaintiff’s left hand and forced Plaintiff down to the

15 ground. Id. Unidentified sheriffs at the County Jail put Plaintiff in “dangerous

16 areas,” even though they were aware of Plaintiff’s poor health. Id. Tonani denied

17 Plaintiff’s request to receive breathing treatments for his COPD. Id. at 4. Lastly,

18 Plaintiff alleges that Bell denied Plaintiff medical attention when he was experiencing

19 chest pain. Id.

20 B. Relief sought

21 Plaintiff seeks damages to compensate him for pain and suffering, and lost

22 wages. Id. at 6.

23 ///

24

25

2 Plaintiff checked a box on the Civil Rights Complaint Form indicating the FAC is being filed pursuant to

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Dkt. 11 at 1.

26 However, all the listed Defendants appear to be either state or local government entities or officers. Thus,

Plaintiff’s claims would arise under § 1983, not Bivens. Accordingly, the Court construes the FAC as a

27 § 1983 action. See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (noting that § 1983 and Bivens

action are the same, except for replacement of state actor under § 1983 with federal actor under Bivens); see

28 also Woods v. Carey, 525 F.3d 886, 889–90 (9th Cir. 2008) (holding that courts should liberally construe pro

se documents).

2

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1 III.

2 STANDARD OF REVIEW

3 Where a plaintiff is incarcerated, a court must screen the complaint under

4 28 U.S.C. § 1915A and is required to dismiss the case at any time if it concludes the

5 action is frivolous or malicious, fails to state a claim on which relief may be granted,

6 or seeks monetary relief against a defendant who is immune from such relief.

7 § 1915A; see Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

8 A complaint may be dismissed for failure to state a claim “where there is no

9 cognizable legal theory or an absence of sufficient facts alleged to support a

10 cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). When

11 considering whether a complaint states a claim, a court must accept as true all of the

12 material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892–93 (9th Cir.

13 2011). However, a court need not accept as true “allegations that are merely

14 conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re

15 Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint

16 need not include detailed factual allegations, it “must contain sufficient factual matter,

17 accepted as true, to state a claim to relief that is plausible on its face.” Cook v.

18 Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (citation and internal quotation marks

19 omitted). A claim is facially plausible when it “allows the court to draw the reasonable

20 inference that the defendant is liable for the misconduct alleged.” Id. The complaint

21 “must contain sufficient allegations of underlying facts to give fair notice and to

22 enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202,

23 1216 (9th Cir. 2011).

24 “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint,

25 however inartfully pleaded, must be held to less stringent standards than formal

26 pleadings drafted by lawyers.’” Woods v. Carey, 525 F.3d 886, 889–90 (9th Cir. 2008).

27 However, liberal construction should only be afforded to “a plaintiff’s factual

28 allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989), and a court need not

3

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1 accept as true “unreasonable inferences or assume the truth of legal conclusions cast

2 in the form of factual allegations,” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir.

3 2003).

4 If a court finds the complaint should be dismissed for failure to state a claim, a

5 court has discretion to dismiss with or without leave to amend. Lopez v. Smith,

6 203 F.3d 1122, 1126–30 (9th Cir. 2000). Leave to amend should be granted if it

7 appears possible the defects in the complaint could be corrected, especially if the

8 plaintiff is pro se. Id. at 1130–31; see also Cato v. United States, 70 F.3d 1103, 1106

9 (9th Cir. 1995). However, if, after careful consideration, it is clear a complaint cannot

10 be cured by amendment, a court may dismiss without leave to amend. Cato, 70 F.3d

11 at 1107–11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).

12 IV.

13 DISCUSSION

14 A. THE FAC IMPROPERLY JOINS DISTINCT CLAIMS

15 1. Applicable law

16 Federal Rule of Civil Procedure 18(a) allows a plaintiff to add multiple claims

17 to a lawsuit when they are against the same defendant. Fed. R. Civ. P. 18(a).

18 Rule 20(a)(2) allows a plaintiff to join multiple defendants to a lawsuit where the right

19 to relief arises out of the same “transaction, occurrence, or series of transactions” and

20 “any question of law or fact common to all defendants will arise in the action.” Fed.

21 R. Civ. P. 20(a)(2); see also League to Save Lake Tahoe v. Tahoe Reg’l Plan. Agency,

22 558 F.2d 914, 917 (9th Cir. 1977). However, “[u]nrelated claims against different

23 defendants belong in different suits . . . to prevent the sort of morass that [a multi-

24 claim, multi-defendant suit] produce[s.]” Billie v. Brown, No. CV 19-03078-VAP

25 (SK), 2019 WL 6792806, at *1 (C.D. Cal. Aug. 28, 2019) (citing George v. Smith,

26 507 F.3d 605, 607 (7th Cir. 2007)). When several claims are misjoined, the court can

27 generally dismiss all but the first named defendant without prejudice to any new,

28 separate lawsuits against some or all of the present defendants based on the claim or

4

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1 claims brought in the present complaint. Coughlin v. Rogers, 130 F.3d 1348, 1350

2 (9th Cir. 1997); Kirakosian v. J&L Sunset Wholesale & Tobacco, No. CV 16-06097-

3 CAS (AJWx), 2017 WL 3038307, at *3 (C.D. Cal. July 18, 2017) (“An accepted

4 practice under Rule 21 is to dismiss all defendants except for the first defendant

5 named in the complaint.”).

6 2. Analysis

7 Here, the FAC contains an allegation of excessive force and potentially two

8 allegations of inadequate medical care. See Dkt. 11 at 3–4. Plaintiff’s allegations all

9 appear to arise out of separate incidents, each occurring at separate facilities: the San

10 Luis Obispo County Jail, NSP, and MCSP. Id. Plaintiff’s claims against each

11 defendant “relate to distinct events occurring at different locations and times,

12 involving different individuals.” Kerstein v. Antelope Valley Hosp., No. CV 18-8960-

13 PA (JPRx), 2018 WL 10111361, at *2. “Mere proximity in time and similarity in the

14 types of problems Plaintiff encountered are not enough to satisfy Rule 20(a)(2) and

15 bring in one suit otherwise unrelated claims against different defendants.” Martin v.

16 Muniz, No. 17-01690 BLF (PR), 2018 WL 2902091, at *4 (N.D. Cal. June 5, 2018)

17 (citing Coughlin, 130 F.3d at 1350–51).

18 Accordingly, the Court finds that Defendants are improperly joined. See Fed.

19 R. Civ. P. 20(a)(2); see also Coughlin, 130 F.3d at 1351 (finding misjoinder where

20 “[e]ach claim raises potentially different issues, and must be viewed in a separate and

21 individual light by the Court.”). Plaintiff’s various unrelated claims against different

22 defendants must be brought in separate lawsuits.3

23 ///

24 ///

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3 If, for example, Plaintiff choses to pursue his claims against Bell at MCSP in an amended

complaint, any claims regarding his treatment while at NSP must be brought in a separate lawsuit.

27 In the event that Plaintiff files an amended complaint that once again improperly joins unrelated

claims and defendants, the Court will be inclined to dismiss all but the first named defendant, Dan

28 Dow, without prejudice based on improper joinder. See Kirakosian v. J&L Sunset Wholesale &

Tobacco, No. CV 16-06097-CAS (AJWx), 2017 WL 3038307, at *3 (C.D. Cal. July 18, 2017).

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1 B. THE FAC FAILS TO COMPLY WITH RULE 8

2 1. Applicable law

3 Rule 8 requires a complaint contain “a short and plain statement of the claim

4 showing that the pleader is entitled to relief” and “a demand for the relief sought.”

5 Fed. R. Civ. P. 8. Rule 8(a) “requires a ‘showing,’ rather than a blanket assertion, of

6 entitlement to relief.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007).

7 “[T]he ‘short and plain statement’ [required by Rule 8] must provide the defendant

8 with ‘fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’”

9 Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005).

10 A court may dismiss a complaint because it is unintelligible or frivolous “where

11 it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

12 325 (1989). Further, Rule 8 requires that a complaint clearly establish the claims and

13 parties such that a defendant would have “no difficulty in responding to the claims

14 with an answer and/or with a Rule 12(b)(6) motion to dismiss.” Hearns v. San

15 Bernardino Police Dep’t, 530 F.3d 1124, 1131–32 (9th Cir. 2008); Conley v. Gibson,

16 355 U.S. 41, 47 (1957).

17 To comply with Rule 8, a plaintiff must link each defendant to specific

18 instances of unlawful conduct. See Est. of Bock ex rel. Bock v. Cnty. of Sutter,

19 No. 2:11-CV-00536-MCE, 2012 WL 423704, at *6 (E.D. Cal. Feb. 8, 2012). Where a

20 plaintiff sues multiple defendants, “[s]pecific identification of the parties to the

21 activities alleged by [a plaintiff] is required . . . to enable the defendant to plead

22 intelligently.” Sherrell v. Bank of Am., N.A., No. CV F 11-1785-LJO (JLT),

23 2011 WL 6749765, at *4 (E.D. Cal. Dec. 22, 2011) (internal quotations omitted). If

24 the Complaint does not specify which conduct is attributable to which defendant, it is

25 subject to dismissal. See id. (dismissing complaint where it “lack[ed] cognizable facts

26 of defendants’ purported wrongdoing to provide fair notice as to what each defendant

27 is to defend.”).

28 ///

6

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1 2. Analysis

2 Here, the FAC does not contain a short, plain statement of Plaintiff’s claims.

3 As pleaded, it is difficult to determine from the FAC “who is being sued, for what

4 relief, and on what theory[.]” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996).

5 Plaintiff makes several allegations concerning a number of different incidents

6 involving many different defendants; however, it is not clear which facts give rise to

7 which claim. Accordingly, the FAC fails to provide any purported Defendants “fair

8 notice of what the plaintiff’s claim[s] [are] and the grounds upon which [they rest].”

9 Dura Pharms., Inc., 544 U.S. at 346 (internal quotation marks omitted).

10 Additionally, Plaintiff does not link any of the individual defendants’ conduct

11 to the alleged constitutional violations. See Estate of Bock ex rel. Bock,

12 2012 WL 423704, at *6. Ultimately, unclear pleadings, like the FAC, “leav[e] it to the

13 Court to figure out what the full array of [Plaintiff’s] claims is and upon what federal

14 law, and upon what facts, each claim is based.” Little v. Baca, No. CV 13-0373-PA

15 (RZ), 2013 WL 436018, at *3 (C.D. Cal. Feb. 1, 2013). Thus, the Court cannot

16 determine whether Plaintiff has alleged sufficient facts to state a particular claim, nor

17 could any purported defendant effectively respond to Plaintiff’s claims. Accordingly,

18 the FAC is subject to dismissal for failure to comply with Rule 8. See McHenry,

19 84 F.3d at 1177.

20 If Plaintiff chooses to file a Second Amended Complaint, he must identify the

21 legal and factual basis for each defendants’ alleged liability. Plaintiff should be aware

22 that in order to state a claim for a civil rights violation under § 1983, he must allege

23 that each defendant, acting under the color of state law, deprived him of a right

24 guaranteed under the United States Constitution or a federal statute. See West v.

25 Atkins, 487 U.S. 42, 48 (1988). Suits against government officials under § 1983 in

26 their individual capacities “seek to impose personal liability upon a government

27 official for actions he takes under color of state law.” Kentucky v. Graham, 473 U.S.

28 159, 165 (1985). “A person deprives another ‘of a constitutional right, within the

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1 meaning of section 1983, if he does an affirmative act, participates in another’s

2 affirmative acts, or omits to perform an act which he is legally required to do that

3 causes the deprivation of which [the plaintiff complains].’” Leer v. Murphy, 844 F.2d

4 628, 633 (9th Cir. 1988) (emphasis and alteration in original) (quoting Johnson v.

5 Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).

6 For each claim, to properly state a claim against Defendants in their individual

7 capacities, Plaintiff must explain:

8 (1) the constitutional right that Plaintiff believes was violated;

9 (2) the name of the Defendant(s) who violated the right;4

10 (3) exactly what the Defendant(s) did or failed to do;

11 (4) how the action or inaction of the Defendant(s) is connected to the

12 violation of Plaintiff’s constitutional right; and

13 (5) what specific injury Plaintiff suffered because of the Defendant(s)’

14 conduct.

15 See Tucker v. Stewart, 72 F. App’x 597, 598 (9th Cir. 2003) (denying plaintiff’s claims

16 for failing to satisfy Rule 8 where he failed to allege these elements as instructed by

17 the district court).

18 C. TO THE EXTENT PLAINTIFF SEEKS MONETARY DAMAGES,

19 THE CLAIMS AGAINST DEFENDANTS IN THEIR OFFICIAL

20 CAPACITIES SHOULD BE DISMISSED

21 1. Applicable law

22 An “official-capacity suit is, in all respects other than name, to be treated as a

23 suit against the entity.” Graham, 473 U.S. at 166 (citations and internal quotation

24 marks omitted); see also Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945,

25

4 The court acknowledges that Plaintiff may not know the name of every involved individual.

26

However, to the extent Plaintiff brings this action against specific officers or facility staff, Plaintiff

27 must at least identify each individual as a separate John Doe defendant (“John Doe 1,” “John

Doe 2,” etc.) and properly attribute specific acts of illegal conduct to each defendant. Under such

28 circumstances, the Court may allow the Plaintiff to conduct limited discovery to learn the names of

the individuals.

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1 966–67 (9th Cir. 2010) (an official capacity suit is treated as a suit against the entity).

2 A plaintiff may seek monetary damages under § 1983 from state employees in their

3 individual capacity. See Adler v. Lewis, 675 F.2d 1085, 1098 (9th Cir. 1982) (“State

4 officials must be sued in their individual capacity in an action for monetary

5 damages.”). However, because “a suit against a state official in his or her official

6 capacity . . . is no different from a suit against the State itself,” state officials sued in

7 their official capacity, like the State itself, are generally entitled to immunity5 in a

8 § 1983 action. Flint v. Dennison, 488 F.3d 816, 824–25 (9th Cir. 2007) (citation

9 omitted).

10 To state a cognizable § 1983 claim against a municipality or local government

11 officer in his or her official capacity, a plaintiff must show the alleged constitutional

12 violation was committed “pursuant to a formal governmental policy or a longstanding

13 practice or custom which constitutes the standard operating procedure of the local

14 governmental entity.” Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992)

15 (citations and internal quotation marks omitted). A plaintiff must show that the

16 policy, practice, or custom was: “(1) the cause in fact and (2) the proximate cause of

17 the constitutional deprivation.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).

18 Proof of random acts or isolated events is insufficient to establish a custom or

19 practice. Thompson v. City of Los Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989).

20 Rather, a plaintiff must prove widespread, systematic constitutional violations which

21 have become the force of law. Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown,

22 520 U.S. 397, 404 (1997).

23 2. Analysis

24 Here, Plaintiff sues Defendants in their official capacities and appears to seek

25 monetary damages. Dkt. 11 at 3–4, 6. Although it is not entirely clear, all Defendants

26

5 “The Eleventh Amendment prohibits federal courts from hearing suits brought against an

27 unconsenting state.” Brooks v. Sulphur Springs Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th Cir.

1991) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). The Eleventh

28 Amendment also prohibits “suits naming state agencies and departments as defendants,” regardless

of whether the plaintiff seeks damages or injunctive relief. Id.

9

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1 appear to be either state or local government officers or entities. All state officer

2 defendants are immune to official capacity suits for damages. See Flint, 488 F.3d

3 at 824–25.

4 With regard to any Defendants who are local government officers or entities,

5 Plaintiff’s official capacity claims must also fail. Plaintiff does not identify “any

6 custom or policy that could serve as the basis for an official capacity claim against the

7 defendants.” Smith v. G. Delacruz, No. EDCV 20-841-SVW (KS),

8 2020 WL 7060198, at *3 (C.D. Cal. April 22, 2020) (dismissing plaintiff’s official

9 capacity claims because plaintiff failed to connect the alleged violations to a custom or

10 policy). Accordingly, Plaintiff’s official capacity claims must be dismissed. Id.

11 D. THE FAC NAMES DEFENDANTS THAT ARE IMMUNE FROM

12 SUIT

13 1. Applicable law

14 To state a claim under § 1983, a plaintiff must allege a deprivation of a right

15 secured by the Constitution and laws of the United States “by a person acting under

16 color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted).

17 However, prosecutors have absolute immunity to suits under § 1983 when the

18 prosecutor acts within the scope of his or her authority and in a quasi-judicial

19 capacity. Ybarra v. Reno Thunderbird Mobile Home Vill., 723 F.2d 675, 678 (9th Cir.

20 1984) (citing Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976)). Prosecutors are not

21 immune to suits for actions outside of this scope. Bly-Magee v. California,

22 236 F.3d 1014, 1018 (9th Cir. 2001) (finding that prosecutors were not “immune for

23 any actions that [were] wholly unrelated to or outside of their official duties.”).

24 Therefore, whether a prosecutor is entitled to absolute immunity turns on the nature

25 of their actions, not necessarily whether they have committed misconduct. See, e.g.,

26 Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 2003) (“A prosecutor’s decision not to

27 preserve or turn over exculpatory material before trial, during trial, or after conviction

28 is a violation of due process[.] . . . It is, nonetheless, an exercise of the prosecutorial

10

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1 function and entitles the prosecutor to absolute immunity from a civil suit for

2 damages.” (citing Imbler, 424 U.S. at 431–32 n.34)).

3 In addition, “[t]he doctrine of qualified immunity protects government officials

4 from liability for civil damages insofar as their conduct does not violate clearly

5 established statutory or constitutional rights of which a reasonable person would have

6 known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotations and

7 citation omitted). To determine whether qualified immunity applies a court considers:

8 (1) “whether there has been a violation of a constitutional right” and (2) “whether that

9 right was clearly established at the time of the officer’s alleged misconduct.” Lopez v.

10 City of Glendora, 811 F. App’x 1016, 1018 (9th Cir. 2020).

11 2. Analysis

12 Here, Plaintiff names Defendants in both their official and individual capacities.

13 Dkt. 11 at 3–4. As discussed above, all of Plaintiff’s official capacity claims must fail.

14 Even if this Court were to construe Plaintiff’s claims for monetary damages as

15 individual capacity claims only, several Defendants are immune from suit.

16 a. District attorney

17 Here, Plaintiff sues District Attorney Dan Dow in both his official and

18 individual capacity. Dkt. 11 at 3. Plaintiff alleges that Dow did not listen to Plaintiff’s

19 pleas about his health. Id. Although Plaintiff did not provide any further details, his

20 sparse allegations appear to concern acts within Dow’s role as a prosecutor during

21 Plaintiff’s criminal proceedings. See id. Thus, any claims against Dow are barred by

22 prosecutorial immunity and subject to dismissal.

23 b. San Luis Obispo County Sheriff and unidentified sheriffs

24 Plaintiff sues the San Luis Obispo County Sheriff and unidentified sheriffs at

25 the San Luis Obispo County Jail. Dkt. 11 at 3. Plaintiff alleges that the Sheriff

26 forcibly clamped handcuffs on him, and when he told the Sheriff that he has a metal

27 bar in his hand, the Sheriff “forced [him] down.” Id. Additionally, Plaintiff alleges

28

11

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1 that individual County sheriffs knew that Plaintiff was in poor health, but still “put

2 [him] in dangerous areas.” Id.

3 Absent more specific factual allegations, these sheriffs appear to be protected

4 by qualified immunity. Compare Krainski v. Nevada ex rel. Bd. of Regents of Nevada

5 Sys. of Higher Educ., 616 F.3d 963 (9th Cir. 2010) (finding that plaintiff’s conclusory

6 allegations against officers were insufficient to state a claim for violation of plaintiff’s

7 Fourth Amendment rights, and therefore qualified immunity applied), with Milke v.

8 Ryan, 711 F.3d 998, 1008 (9th Cir. 2013) (granting relief because plaintiff had

9 presented “hundreds of pages of court records from cases where [the officer] had

10 committed misconduct, either by lying under oath or by violating suspects’ Miranda

11 and other constitutional rights”). Thus, Plaintiff’s claims against the sheriffs are

12 subject to dismissal.

13 E. PLAINTIFF FAILS TO STATE AN INADEQUATE MEDICAL CARE

14 CLAIM UNDER THE EIGHTH AMENDMENT

15 1. Applicable law

16 Prison officials or private physicians under contract to treat state inmates

17 “violate the Eighth Amendment if they are deliberately indifferent to a prisoner’s

18 serious medical needs.” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014)

19 (citation, internal quotation marks, and alterations omitted); Farmer v. Brennan,

20 511 U.S. 825, 828 (1994); West v. Atkins, 487 U.S. 42, 54 (1988). To assert a

21 deliberate indifference claim, a prisoner plaintiff must show the defendant:

22 (1) deprived him of an objectively serious medical need, and (2) acted with a

23 subjectively culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 297 (1991). “A

24 medical need is serious if failure to treat it will result in significant injury or the

25 unnecessary and wanton infliction of pain.” Peralta, 744 F.3d at 1081 (citations and

26 internal quotation marks omitted).

27 “A prison official is deliberately indifferent to [a serious medical] need if he

28 knows of and disregards an excessive risk to inmate health.” Peralta, 744 F.3d at 1082

12

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1 (citation and internal quotation marks omitted). This “requires more than ordinary

2 lack of due care.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citations

3 and internal quotation marks omitted). The “official must both be aware of facts

4 from which the inference could be drawn that a substantial risk of serious harm exists,

5 and he must also draw the inference.” Id. (citation and internal quotation marks

6 omitted).

7 “Deliberate indifference may appear when prison officials deny, delay, or

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

9 prison physicians provide medical care.” Id. (citation and internal quotation marks

10 omitted). In either case, however, the indifference to the inmate’s medical needs must

11 be purposeful and substantial; negligence, inadvertence, or differences in medical

12 judgment or opinion do not rise to the level of a constitutional violation. See Jackson

13 v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), overruled in part on other grounds by

14 Peralta, 744 F.3d at 1076; Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)

15 (negligence constituting medical malpractice is not sufficient to establish an Eighth

16 Amendment violation); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v.

17 State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981) (“A difference of

18 opinion between a prisoner-patient and prison medical authorities regarding treatment

19 does not give rise to a [section] 1983 claim.”). A plaintiff “must show that the course

20 of treatment the doctors chose was medically unacceptable under the circumstances,

21 and . . . that they chose this course in conscious disregard of an excessive risk to

22 plaintiff’s health.” Jackson, 90 F.3d at 331.

23 2. Analysis

24 Here, Plaintiff appears to allege that Defendants denied him medical care on at

25 least two occasions. See Dkt. 11 at 3–4. First, Plaintiff alleges that Tonani, a

26 correctional officer at NSP, would not let him receive breathing treatments for his

27 COPD. Id. at 4. Plaintiff claims that Defendants would have had access to his health

28 records, which documented his COPD. Id. at 5. Next, Plaintiff alleges that Bell, a

13

Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 14 of 49 Page ID #:103

1 correctional officer at MCSP, denied him medical attention when he was experiencing

2 chest pain. Id. at 4.

3 Although Plaintiff has partially described the type of care he was denied, he

4 does not describe whether or how his injuries worsened as a result. Further, Plaintiff

5 has not shown that the lack of medical care exceeded mere negligence or a difference

6 of opinion in care. In other words, Plaintiff has not alleged facts that could support

7 an inference that Defendants made a conscious choice to deny him care, despite the

8 risk to Plaintiff’s health.

9 If possible, any amended complaint should include additional details about

10 Plaintiff’s ailments at the time of the alleged violation, the specific conduct of the

11 medical personnel each facility, any resulting injuries, and should clearly restate

12 relevant information from the FAC.

13 F. PLAINTIFF FAILS TO STATE A CLAIM FOR EXCESSIVE FORCE

14 1. Applicable law

15 To the extent Plaintiff claims the Sheriff used excessive force after his arrest,

16 this claim is properly analyzed under the Due Process Clause of the Fourteenth

17 Amendment. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015); Mendiola-Martinez

18 v. Arpaio, 836 F.3d 1239, 1246 n.5 (9th Cir. 2016). To state a claim for excessive

19 force under the Fourteenth Amendment, a pretrial detainee must show that “the force

20 purposely or knowingly used against him was objectively unreasonable.” Kingsley,

21 576 U.S. at 389.

22 2. Analysis

23 Here, Plaintiff alleges that after he was arrested, the Sheriff forcibly applied

24 handcuffs and forced Plaintiff to get on the ground.6 Dkt. 11 at 5. Without more,

25 such allegations do not show that force was knowingly used and was objectively

26 unreasonable. See Kingsley, 576 U.S. at 389; Dkt. 11 at 3. Therefore, to the extent

27

28

6 It is not clear whether the Sheriff used physical force to bring Plaintiff to the ground or whether he

instead ordered Plaintiff to do so. See Dkt. 11 at 3, 5.

14

Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 15 of 49 Page ID #:104

1 Plaintiff claims that the Sheriff used excessive force in violation of the Fourteenth

2 Amendment, this claim fails.

3 V.

4 LEAVE TO FILE A SECOND AMENDED COMPLAINT

5 For the foregoing reasons, the FAC is subject to dismissal. As the Court is

6 unable to determine whether amendment would be futile, leave to amend is granted.

7 See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam).

8 Accordingly, IT IS ORDERED THAT by September 5, 2022, Plaintiff

9 must choose one of the following three (3) options:

10 1. Plaintiff may file a Second Amended Complaint to attempt to cure the

11 deficiencies discussed above. If Plaintiff chooses to file a Second Amended

12 Complaint, he must clearly designate on the face of the document that it is the

13 “Second Amended Complaint,” it must bear the docket number assigned to this case,

14 and it must be retyped or rewritten in its entirety, preferably on the court-approved

15 form. Plaintiff shall not include new defendants or allegations that are not reasonably

16 related to the claims asserted in the Complaint. In addition, the Second Amended

17 Complaint must be complete without reference to the FAC, or any other

18 pleading, attachment, or document.

19 The Clerk of Court is directed to mail Plaintiff a blank Central District

20 civil rights complaint form to use for filing the Second Amended Complaint,

21 which the Court encourages Plaintiff to use. The Clerk of Court is also

22 directed to mail Plaintiff a copy of his FAC (Dkt. 11) for his reference.

23 Plaintiff is advised that this Court’s determination that the allegations in the

24 FAC are insufficient to state a particular claim should not be seen as dispositive of

25 that claim. Accordingly, although this Court believes that Plaintiff has failed to plead

26 sufficient factual matter in his pleading, accepted as true, to state a claim to relief that

27 is plausible on its face, Plaintiff is not required to omit any claim or defendant in order

28 to pursue this action. However, if Plaintiff decides to pursue a claim in a Second

15

Case 2:P2-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 16 of 49 Page ID #:105

1 | Amended Complaint that this Court has found to be insufficient, then this Court,

2 | pursuant to the provisions of 28 U.S.C. § 636, ultimately may submit to the assigned

3 | district judge a recommendation that such claim be dismissed with prejudice for

4 | failure to state a claim, subject to Plaintiffs right at that time to file Objections with

5 | the district judge as provided in the Local Rules Governing Duties of Magistrate

6 | Judges.

-

8 2. Alternatively, Plaintiff may file a notice with the Court that he intends to

9 | stand on the allegations in his FAC. If Plaintiff chooses to stand on the FAC despite

10 | the deficiencies in the claims identified above, then the Court will submit a

11 | recommendation to the assigned district judge that the FAC be dismissed with

12 | prejudice for failure to state a claim, subject to Plaintiffs right at that time to file

13 | Objections with the district judge as provided in the Local Rules Governing Duties of

14 | Magistrate Judges.

15

16 3. Finally, Plaintiff may voluntarily dismiss the action without prejudice,

17 | pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed

18 | to mail Plaintiff a blank Notice of Dismissal Form, which the Court

19 | encourages Plaintiff to use if they choose to voluntarily dismiss the action.

20 Plaintiff is explicitly cautioned that failure to timely file a Second

21 | Amended Complaint will result in this action being dismissed with prejudice

22 | for failure to state a claim, or for failure to prosecute and/or obey Court orders

23 | pursuant to Federal Rule of Civil Procedure 41(b).

24

25 | Dated: August 09, 2022 J as 3 -

26 HONORABLE MARGO A. ROCCONI

59 United States Magistrate Judge

28

16

Cdse2 2 2220,000077VNVFFVARR Doounreahti31 Fitdd®8709/222 PaggelZ of 28 Page ID #:406

Dawen ble 4 A Weegee

= Fiest KRMEMDED COMP larnd

COMMITTEDNAME(ifdifere) = |.

Mcic- Q- (S-C jol- [Lh CLERK, US DINIRICT COURT

FULL ADDRESS INCLUDING NAME OF INSTITUTION

POBox YROSY 7/14/22

a ene CA aS ¢ YO CENTRAL DISTRICT OF CALIFORNIA

PRISON NUMBER (if applicable) BY: eb DEPUTY

BPSSc

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

4 CASE NUMBER

Damon bleyd Witherb.< ~- 2027] ~-M WE (CHAR

To be supplied by the Clerk

PLAINTIFF,

Vv.

\ aw eases CIVIL RIGHTS COMPLAINT

PURSUANT TO (Check one)

O 42 U.S.C. § 1983

Qirereies Peronmey ele DEFENDANTS): | [Bivens v. Six Unknown Agents 403 U.S. 388 (1971)

A. PREVIOUS LAWSUITS

1. Have you brought any other lawsuits in a federal court while a prisoner: D0 Yes Nato

2. If your answer to “1.” is yes, how many?

Describe the lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on an

attached piece of paper using the same outline.)

CIVIL RIGHTS COMPLAINT

CV-66 (7/97) Page | of 6

Cadac 2 222,020077/NVFRMARR Diodocunreahti31 FiddO8/09H22 Paggd2 of 46 Page ID #:407

a. Parties to this previous lawsuit:

Plaintiff $$

Defendants

b. Court

c. Docket or case number

d. Name of judge to whom case was assigned

e. Disposition (For example: Was the case dismissed? If so, what was the basis for dismissal? Was it

appealed? Is it still pending?)

f. Issues raised:

g. Approximate date of filing lawsuit:

h. Approximate date of disposition

B. EXHAUSTION OF ADMINISTRATIVE REMEDIES

1. Is there a grievance procedure available at the institution where the events relating to your current complaint

occurred? Wes [No

2. Have you filed a grievance concerning the facts relating to your current complaint? @Yes ONo

If your answer is no, explain why not

3. Is the grievance procedure completed? Yes [No

If your answer is no, explain why not Fran inn c \ dw oth. \ ast hiens qd covip

4. Please attach copies of papers related to the grievance procedure.

C. JURISDICTION

This complaint alleges that the civil rights of plaintiff Deen Lie 4 dl Vv Me □□□

(print plaintiff's name) y t c A

3 WV

who presently resides at ule { peek Shebe Pirigor □□□ \S—¢ lo} - I P.0, Roy HOICEN Tens 4o

(mailing address or place of confinement)

were violated by the actions of the defendant(s) named below, which actions were directed against plaintiff at

SAn L & rs County She ae. | rept

(institutidn/city where violation occurre

CIVIL RIGHTS COMPLAINT

CV-66 (7/97) Page 2 of 6

Cdse@ 2 □□□□□□□□□□□□□□□□□□□□□ Doounreahti31 Fitdd®8709/222 PaggelS of 28 Page ID #:468

on (date or dates) | f (f 2020 , :

(Claim I) (Claim If) (Claim I)

NOTE: You need not name more than one defendant or allege more than one claim. If you are naming more than

five (5) defendants, make a copy of this page to provide the information for additional defendants.

1. Defendant Den . De «> resides or works at

(full name of first defendant)

Coot house Maney. Y th Clee C San Laur Obibo Ht TSYQO

(full address of first defendant)

retried 4 Horn

(defendant's position and title, 1f any)

The defendant is sued in his/her (Check one or both): individual official capacity.

Explain how this defendant was acting under color of law:

Bu puthun ms lite WW reporecloy by nat distin.

WA R | eu? albouk My Scott

2. Defendant Poa hetus Ob, SPO Coun - Chere resides or works at

(full name of first defendant)

6S kKansag Ave, Sankey obispo, © T340T

(full address of first defendant)

She ots Pe. aX wen

: (defendant's position and title, 1f an’

The defendant is sued in his/her (Check one or both): 4 individual official capacity.

Explain how this defendant was acting under color of law:

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Nites “push a \roaak whak bon Ww aX + yhow T 3a) som,

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3. Defendant i 0 +a |- {© resides or works at

(full name of first defendant)

iS 8S Kansas Ave buts Ob: S Poy YOST

(full address of first defendant)

Shen Pe Woe CS inet 4

(defendant's position and title, 1f any)

The defendant is sued in his/her (Check one or both): individual Dtofficial capacity.

Explain how this defendant was acting under color of law:

h ce PD ve had a cack yhte k 4 Stvo ke x metal)

dA tn Ain b ff at RASFI AL © &. ho ll}

rnc <t Gat pet oto 4 Or2H4

CIVIL RIGHTS COMPLAINT

CV-66 (7/97) Page 3 of 6

Cdse2 2 2220,000077/NVFFVARR Doounreahtl31 Fitdd®8709/22 Pagg’?a of 2B Page ID #:409

4. Defendant a iain resides or works at

(full name of first defendant)

Nocce Cray PAS

(full address of first defendant)

Cerceet ieee ark. wi

(defendant's position and ttle, if any)

The defendant is sued in his/her (Check one or both): OD) individual pa official capacity.

Explain how this defendant was acting under color of law:

D ae ariet fe re He LILO Sto he nf

pl LO) ALie □ Ld CO Ad)

5. Defendant Rel\ resides or works at

(full name of first defendant)

\ sie. yal: SUA Ypwe~

(full address of first defendant)

(ttre BWicevt

(defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): 4 individual official capacity.

Explain how this defendant was acting under color of law:

2 . ‘ ji

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trams oN ak — rank becl te “re So (Care “Av hazel

CIVIL RIGHTS COMPLAINT

CV-66 (7/97) Page 4 of 6

Cdae? 2 223,020077VNVFRMARR Diocunreanht31 FiddO8/09M22 PaggeS of 26 Page ID #:470

D. CLAIMS*

CLAIM I

The following civil right has been violated:

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Supporting Facts: Include all facts you consider important. State the facts clearly, in your own words, and without

citing legal authority or argument. Be certain you describe, in separately numbered paragraphs, exactly what each

DEFENDANT (by name) did to violate your right. =

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*]f there is more than one claim, describe the additional claim(s) on another attached piece of paper using the same

outline.

CIVIL RIGHTS COMPLAINT

CV-66 (7/97) Page 5 of 6

Cadac 2 222,020077VNVFRMARR Diodocunreahti31 FiddO8/09H22 Pagges of 26 Page ID #:681

E. REQUEST FOR RELIEF

| believe that I am entitled to the following specific relief:

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(Date) (Signature bf P, ainttiff)

CIVIL RIGHTS COMPLAINT

CV-66 (7/97) Page 6 of 6

Cadac 2 222,020077/NVFRMARR Diodcunreahti31 FiddO8/09H22 Pagge3 of 28 Page ID #:692

REASONABLE ACCOMMODATION PANEL (RAP) RESPONSE

RAP Meeting Date: 5/10/2022 Date IAC Received 1824: 5/6/2022 1824 Log Number: 165185440547

Inmate Name: WITHERBEE CDCR #: BP5564 Housing: D18-B1-103-1L

RAP Staff Present: T. Miranda, ADA-AW; M. Ullery, P&S; H. Cribari, HCCA; D. Coffin, SP&S-MH; H. Fletes, CCII-

IGO; J. Andres, DDP Sgt.; A Wohlers, SAI; S. Strazdins, HCGO

Summary of Inmate’s 1824 Request: You state you can’t always fill out forms due to brain injury. You request

shoes, breathing treatment and an ADA worker to scribe.

Interim Accommodation:

No interim accommodation required: Your issues are not found to cause personal injury or other serious

harm while processing of this 1824.

L] Interim accommodation provided:

LC] RAP rescinding interim accommodation:

RAP is unable to process the following request(s):

LC) Paroled/discharged/transferred. C] Duplicate request. See CDCR 1824 log #:

[] Refused to cooperate. CL] Other:

Final Response: The Reasonable Accommodation Panel (RAP) reviewed your request on 5/10/2022. The review

encompassed your recent health care information, evaluations, and SOMS file. A Disability Placement Program

Accommodation Summary has identified your Disability Codes as DPM and you are a participant in the Mental

Health Services Delivery System at the EOP level of care. A recent Disability Verification Process (DVP)

Worksheet notes your feet were examined by your PCP on 4/12/22 and you were referred to orthotics. In

addition, the DVP notes breathing treatments are available for all inmates on an emergency basis. Ultimately,

ADA Workers are available to assist you with completing forms.

The RAP has determined that no accommodation is required at this time for you to access programs, services,

or activities.

Direction If Dissatisfied: If you disagree with the medical evaluations/final, you can file a CDCR 602 Healthcare

Grievance (blue) form. Be sure to attach a copy of this response along with your CDCR 1824 as supporting

documents.

If you disagree with the decision made by the RAP you may address your disagreement by attaching the CDCR

1824 package along with this RAP response to a newly completed CDCR 602 Inmate Grievance (green) form.

Effective Communication: You have been identified as requiring effective communication (EC), therefore special

accommodations will be arranged with your correctional counselor to ensure effective communication and

understanding of the decision.

T. Miranda Tone ae f/2.2

ADA Coordinator/Designee Signature ate sent to inmate

ace

cot UE

———

Page | of |

Cdae? 2 223,020077/NVFRMARR Docunreaht31 FiddO809M22 Pagge3 of 26 Page ID #:103

ADA/Effective Communication Patient Summary

As of: 03/10/2022 07:59

Patient Information Testing of Adult Basic Education (TABE)

NAME: WITHERBEE, DAMON TABE Score: No Score Available

CDCR: BP5564

TABE Date:

Disability Placement Program

Learning Disabilities

Current DPP Code(s):

* DLT Learning Disabilities:

DPP Verification/ Accommodation Date: 12/29/21 English Proficiency

12:57:43 PST

LEP: No

Current Housing Restrictions/Accomodations:

* Extra Time for Meals Primary Language: English

* Bottom Bunk

* Ground Floor- Limited Stairs

Durable Medical Equipment

Methods of Communication Current ISSUED DME:

* Compression Stocking Temporary

SLI: * Eyeglass Frames Permanent

* Mobility Impaired Disability Vest Permanent

Primary Method: * Wrist Support Brace Temporary

Secondary Method:

Dental Prosthetic:

Interview Date:

Dental Prosthetic Date:

Developmental Disability Program

MHSDS

Current DDP Code:

MHLOC: EOP

Effective Date:

Adaptive Support Needs:

file:///C:/Temp/42/dovb30d42be-069f-4faa-aabe-deSaea8c40a6.htm 3/10/2022

Cdse@ 2 □□□□□□□□□□□□□□□□□□□□□ Doounreahtl31 Fidd®809/22 Pagg@S of 28 Page ID #:114

STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION

HEALTH CARE GRIEVANCE Page 1 of 2

. 10/18

CDCR 602 HC (Rev. 10/18) OOH \,

STAFF USE ONLY Expedited? Vas (SPNo Tracking #:

mcspuc #22 6144344 —

M. Martinez, HCARN

Staff Name and Title (Print Signature Date

if you think you have a medical, mental health or dental emergency, notify staff immediately. If additional space is needed, use Section A of the

CDCR 602 HC A Health Care Grievance Attachment. Only one CDCR 602 HC A will be accepted. You must submit this health care grievance to the Health Care

Grievance Office for processing. Refer to California Code of Regulations (CCR), Title 15, Chapter 2, Subchapter 2, Article 5 for further guidance with the health

care grievance process.

Do not exceed more than one row of text per line. WRITE, PRINT, or TYPE CLEARLY in black or blue ink.

Name (Last, First, Ml): CDCR #: Unit/Cell #:

eweRncic Damen BPSsct [BB /foje_

: _ {Explain the applied health care policy, decision, action, condition, or omission that has had a material adverse effect upon your health or

SECTION A:

welfare for which you seek administrative remedy:

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AC ot a eit et ey WW CA edt ot cork, iS pPANtzNnh 5,

= 5 ei

— Arc. kad fr Ave Sun ot ns OC aah \WreTh, + AOE

1 AAG Nit monies

Supporting Documents Attached. Refer to CCR 3999.227_ [[] Yes No

Grievant Signature: DA. iP { Date Submitted: 3 /5 [2 2

BY PLACING MY INITIALS IN THIS BOX, | REQUEST TO RECEIVE AN INTERVIEW AT THE INSTITUTIONAL LEVEL.

SECTION B: |HEALTH CARE GRIEVANCE REVIEW INSTITUTIONAL LEVEL: Staff Use Only ls a CDCR 602 HC A attached? CJ Yes No

This grievance has been:

(] Rejected (See attached letter for instruction): Date: Date:

[_] Witidrawn (see section E) (dentot)

om, *,

[x Accepted Assigned To: Avch \ bad Title: \ BI ) Date Assigned: A i VL vate Due: é > / s

Interview Conducted? pt Yes [] No Date of Interview: L, | 13 }2e22 _ Interview Location! “WD -~peanrt Dy te

interviewer Name and Title (print): l A j 4 fe JOO 5 Signature: Date: 4 /i J) 202

Reviewing Authority \ a : Slanaturet Date:

Name and Title (print): vy \ te A \ My \ —_ ¢ ame ey ‘2

Disposition: See attached letter [_] Intervention FANo Intervention

; □□ =

HCGO Use Only: Date closed and maifed/delivered to grievant.{4F : J PLE

“Loa ee

1. Disability Code: 2. Accommodation: 3. Effective Communication: ow be NA

TABE score < 4.0 [@ Additional time Patient asked questions Q@ ACSP

CI DPH(J OPVEI □□ (J Equipment(] Sit Patient summed information

(] DPS[[] DNH (1 Louder[g Slower Please check one: Mes 1 3 2022

{} DDP Basic[]Transcribe [_] Not reached” □□□ Reaciied HAR I § 2877 STAFF USE ONLY

f_] Not Applicable {| Other* *See chrono/notes | f He CO

i.

4 Comments; Depew Am hf □ j i A □□□

Came 2 22a CZAR | Dnesmtt TiS. FAIRSCB7OSI22 Page CR □□ Rage | HUD

STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION

HEALTH CARE GRIEVANCE MCSP- Page 2 of 2

CDCR 602 HC (Rev. 10/18) Tracking #:

Health Care Grievance Appeal. !f you are dissatisfied with the Institutional Level Grievance Response, explain the reason below (if more

SECTION C: |space is needed, use Section C of the CDCR 602 HC A), and submit the entire health care grievance package by mail for Headquarters’ (HQ) Level

health care grievance appeal review. Mail to: Health Care Correspondence and Appeals Branch, P.O. Box 588500, Elk Grove, CA 95758.

I

Ii Ii IS

I i I

I

ne

i III

Grievant Signature: Date Submitted:

SECTION D: HEALTH CARE GRIEVANCE APPEAL REVIEW HQ LEVEL: Staff Use Only is a CDCR 602 HC A attached? [] Yes No

This grievance has been:

Rejected (See attached letter for instruction); Date: Date:

□□□ Withdrawn (see section E) Accepted

[| Amendment _ Date:

Interview Conducted? [] Yes [} No Date of Interview: _ Interview Location:

Interviewer Name and Title (print): Signature: Date:

Disposition: See attached letter [_] Intervention [_] No Intervention

This decision exhausts your administrative remedies.

HQ Use Only: Date closed and mailed/delivered to grievant:

SECTION E: [Grievant requests to WITHDRAW health care grievance: | request that this health care grievance be withdrawn from further review. Reason:

I an

i I I I II.

ee

Grievant Signature: Date Submitted:

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os

MCSPry Wh"

WAR 1.0 1602 os STAFF USE ONLY

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Distribution: Original - Returned to grievant after completed; Scanned Copy - Health Care Appeals and Risk Tracking System 2.0 (Do not place in central file or health record)

Unauthorized collection, creation, use, disclosure, modification or destruction of personally identifiable information and/or protected health information may subject individuals to civil

liability under applicable federal and state laws.

JUSTICE INVOLVED PATIENT'S RIGHTS & RESPONSIBILITIES

A patient's rights and responsibilities shall include but not be limited to:

(a patient shall have the right to:)

i. Cxercise these rights without regard to sex or culture, economic, educational, or religious background or

the source of payment for care.

2. Considerate and respectful care, including privacy in treatment and in care of personal needs, when not in

conflict with security and custodial policies.

3. Receive information about the illness, the course of treatment and prospects for recovery in terms that the

patient can understand and to be afforded the Opportunity to discuss medical treatment.

4. Receive as much information about any proposed treatment or procedure as the patient may need in order

to give informed consent or to refuse this course of treatment. Except in emergencies, this information shall

include a description of the procedure or treatment, the medically significant risks involved in this treat-

ment, alternate courses of treatment or nontreatment and the risks involved in each.

5. Participate in the consideration of ethical issues that arise in the provisions of the patient's care. A Bio-Eth-

ics Committee exists for the purpose of addressing ethical issues which may arise the care of the patient’.

To gain access to the Bio-Ethics Committee, please notify the unit charge nurse or nursing administrator.

6. Confidential treatment of all communications and records pertaining to the care and ihe stay in the hospital.

Written permission shall be obtained before medical records can be made available to anyone not directly

concerned with the care or who is outside the correctional treatment center, except in case of transfer to

another health care facility, or as or required by law.

7. Reasonable responses to any reasonable requests made for services.

8. To give informed consent or to refuse any treatment or procedure or participation in experimental research.

9. Be informed of continuing health care requirements following discharge from the hospital.

10. Know which hospital rules and policies apply to the patient's conduct while a patient.

A patient's resporisibilities shall include but are not limited to:

(A patient shall have the responsibility to/for:)

1. Following the recommended treatment plan.

2. Her/his actions if the patient refuses treatment or fails to follow the practitioner's instructions.

S. Foliowing hospital rules and regulations affecting patient care and conduct.

4. Considering the rights of other patients and hospital personnel. The patient is responsible for being re-

spectiul of the property of other persons and the hospital.

If; □□

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Receivéd by os Date / Time

Witness a Date / Time

i «Aix Patient Label SSS

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STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION

HEALTH CARE GRIEVANCE □ Page 1 of 2

. CDCR 602 HC (Rev. 10/18) QOOUH \s

STAFF USE ONLY Expedited? ry ven [YNo Tracking #:

Mcsp-HC ~ # 9-9-6434

M. Martinez, HCARN

iStaff Name Title (Print Signatu Ly Date

If you think you have a medical, mental health or dental emergency, notify staff immediately. If additional space is needed, use Section A of the

CDCR 602 HC A Health Care Grievance Attachment. Only one CDCR 602 HC A will be accepted. You must submit this health care grievance to the Health Care

Grievance Office for processing. Refer to California Code of Regulations (CCR), Title 15, Chapter 2, Subchapter 2, Article 5 for further guidance with the health

care grievance process.

Do not exceed more than one row of text per line. WRITE, PRINT, or TYPE CLEARLY in black or blue ink.

Name (Last, First, Ml): CDCR #: Unit/Cell #:

fewernce Damen [BS / foie

_ |Explain the applied health care policy, decision, action, condition, or omission that has had a material adverse effect upon your health or

SECTION A: 3 nee

welfare for which you seek administrative remedy:

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Supporting Documents Attached. Refer to CCR 3999.227 □□ Yes M’No

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Grievant Signature ( 2 { wp L □ Date Submitted 3 /5, i ?

BY PLACING MY INITIALS IN THIS BOX, |! REQUEST TO RECEIVE AN INTERVIEW AT THE INSTITUTIONAL LEVEL.

SECTION B: |HEALTH CARE GRIEVANCE REVIEW INSTITUTIONAL LEVEL: Staff Use Only Is a CDCR 602 HC A attached? Ga Yes eT No

This grievance has been:

Rejected (See attached letter for instruction): Date: Date:

_] Wipdrawn (see section E) (deta)

4° Accepted Assigned TWO) i d Title: | I ) Date Assigned: A i Late Due: < 5

Interview Conducted? pa Yes [] No Date of Interview: L, / 13 }2v27 __ Interview Location D—-—perwrrs Ys

Interviewer Name and Title (print): / UA St) 5S Signature: Date: /i □□□

Reviewing Authority □ ji Biaaaiura® Date:

Name and Title (print): A \ My JERS SP ea ¢ ate: 2.

Disposition: See attached letter (_] Intervention V.No Intervention

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HCGO Use Only: Date closed and mailed/delivered to grievant. * PLE

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1. Disability Code: 2. Accommodation: 3. Effective Communicatior: gut kn LAS

TABE score < 4.0 Additional time Patient asked questions ‘ ACSP

(J DPHE] DPV[JLD [ Equipment(_] SLI Patient summed information

(7 DPS(_] ONH [_] Louder[g@ Slower Please check one: MCSeN 1 3 2022

L] □□□ Basic{_]Transcribe [[] Not reached* @Y Reaciied HAR 7 § STAFF USE ONLY

|_] Not Applicable (_] Other* *See chrono/notes f Ae oO

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STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION

HEALTH CARE GRIEVANCE MCSP- Page 2 of 2

CDCR 602 HC (Rev. 10/18) Tracking #:

Health Care Grievance Appeal. If you are dissatisfied with the Institutional Level Grievance Response, explain the reason below (if more

SECTION CG: |space is needed, use Section C of the CDCR 602 HC A), and submit the entire health care grievance package by mail for Headquarters’ (HQ) Level

health care grievance appeal review. Mail to: Health Care Correspondence and Appeals Branch, P.O. Box 588500, Elk Grove, CA 95758.

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Grievant Signature: Date Submitted:

SECTION D: [HEALTH CARE GRIEVANCE APPEAL REVIEW HQ LEVEL: Staff Use Only Is a CDCR 602 HC A attached? [_] Yes [_] No

This grievance has been:

□□□ Rejected (See attached letter for instruction): Date: Date:

[_] Withdrawn (see section E) [_] Accepted

L.} Amendment Date:

Interview Conducted? [] Yes [] No Date of Interview: Interview Location:

Interviewer Name and Title (print): Signature: Date:

Disposition: See attached letter [_] Intervention _] No Intervention

This decision exhausts your administrative remedies.

HQ Use Only: Date closed and mailed/delivered to grievant:

SECTION E: |Grievant requests to WITHDRAW heaith care grievance: | request that this health care grievance be withdrawn from further review. Reason:

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Grievant Signature: Date Submitted:

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WAR 10 260% STAFF USE ONLY

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Distribution: Original - Returned to grievant after completed; Scanned Copy - Health Care Appeals and Risk Tracking System 2.0 (Do not place in central file or health record)

Unauthorized collection, creation, use, disclosure, modification or destruction of personally identifiable information and/or protected health information may subject individuals to civil

liability under applicable federal and state laws.

Cae 2 22a OOTAA-R Dearit Ts. §=FAlest G7 Freegige calf 425 Freep | [DF 72),

STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION

GA-22 (9/92)

INMATE REQUEST FOR INTERVIEW

DATE TO FROM (LASTNAME} CDCR NUMBER

ein, Trust Peweduat LY: THE RCE BPSSE

HOUSING BED NUMBER | WORK ASSIGNMENT JOB NUMBER

D8 Clot ft NA FROM (VA~To

OTHER ASSIGNMENT (SCHOOL, THERAPY, ETC.) ASSIGNMENT HOURS

NA FROM TO

Clearly state your reason for requesting this interview.

You will be called in for interview in the near future if the matter cannot be handled by correspondence.

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Bo NOT write below this fine. If' more space is required, write om backs 0 Ci ee 2

INTERVIEWED BY DATE

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DISPOSITION

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Cae 2 22 AA-R )«Dnesitttsl FAlesiG/OSI22 RPagesba45 Page| DHA

INMATE: _ Witherbee CDC#: BP5564 HOUSING: D 18 101 DATE: _ 5/31/2022

FROM: MCSP TRUST OFFICE

REGARDING: REQUESTED SIX MONTH CERTIFIED TRUST STATEMENT

CERTIFIED TRUST STATEMENTS ARE PROVIDED FOR COURT PURPOSES ONLY.

| CERTIFIED TRUST ACCOUNT STATEMENTS ARE PROVIDED ONLY FOR COURT

PURPOSES RELATED TO YOUR INCARCERATION. THEY WILL NOT BE

PROVIDED FOR ANY OTHER REASON.

CERTIFIED STATEMENTS ARE PROVIDED TO COUNSELORS.

THEY ARE NOT MAILED WITHIN THE INSTITUTION.

| | PLEASE DO NOT SEND YOUR LEGAL PAPERWORK TO THE TRUST OFFICE.

WE ARE NOT RESPONSIBLE FOR YOUR LEGAL MAIL OUT. FOLLOW THE

PROCEDURE FOR MAILING LEGAL PAPERWORK OUT OR CONTACT YOUR

COUNSELOR FOR HELP.

YOUR COUNSELOR, CCI: Navarro

HAS BEEN NOTIFIED THAT YOUR STATEMENT IS AVAILABLE TO PICK UP

FROM THE TRUST OFFICE. CONTACT THEM TO COMPLETE YOUR LEGAL

PAPERWORK.

Cae 2 Ae OAR | ests. FAIRRCR/OSI22 Faye sty aff455 Peay DH 122

1 |C. PLAINTIFF FAILS TO STATE A FAILURE TO PROTECT CLAIM

2 UNDER THE EIGHTH AMENDMENT”

3 Applicable Law

4 “The Eighth Amendment imposes a duty on prison officials to protect inmates

5 | from violence at the hands of other inmates.” Cortez v. Skol, 776 F.3d 1046, 1050

6 | Oth Cir. 2015) (citing Farmer v. Brennan, 511 U.S. 825, 833 (1994)). Prison officials

7 | can violate the constitution if they are “deliberately indifferent” to a serious risk of

8 | harm to the inmate. See Farmer, 511 U.S. at 834; Estelle v. Gamble, 429 U.S. 97, 104

9 | 976); Cortez, 776 F.3d at 1050. To be liable for “deliberate indifference,” a prison

10 | official must “both be aware of facts from which the inference could be drawn that a

11 | substantial risk of serious harm exists, and he must also draw the inference.” Farmer,

12 | 511 U.S. at 837. “[A]n official’s failure to alleviate a significant risk that he should

13 | have perceived but did not, while no cause for commendation, cannot... be

14 | condemned as the infliction of punishment.” Id. at 838. Allegations of negligence do

15 | not suffice. Estelle, 429 U.S. at 105-06; Lopez, 203 F.3d at 1131.

16 Bi Analysis

if Here, it is unclear whether Plaintiff is attempting to make an Eighth

18 | Amendment claim for failure to protect. Plaintiff alleges that he is a disabled veteran

19 | who is blind, has a traumatic brain injury, and post-traumatic stress disorder. Dkt. 3

20 | at 5. Plaintiff also alleges that he was attacked, but it is not clear whether this attack

21 | occurred while he was in custody at the San Luis Obispo County Jail and whether this

22 | attack caused his described medical impairments, such as his traumatic brain injury.

23 | Id. Further, the Complaint is entirely devoid of any allegations as to the individual

24 | Defendants’ actions. In the absence of clear factual allegations showing that

29 | To the extent Plaintiff asserts that the alleged failure to protect violated Plaintiff's due process

26 | rights, any such claim is not cognizable. See United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)

(“if a constitutional claim is covered by a specific constitutional provision, such as the . . . Eighth

27 | Amendment, the claim must be analyzed under the standard appropriate to that specific provision,

5g | not under the rubric of substantive due process”) (citing Graham v, Connor, 490 U.S. 386, 394

(1989).

12

Cae 2 22 O07 Donets. FAleeGR/OSI22 Rage saff455 Page| DDH EB

Liorary

15 CCR 3123

This document is current through Register 2022, No. 1, January 7, 2022

CA - Barclays Official California Code of Regulations > TITLE 15. CRIME PREVENTION AND

CORRECTIONS > DIVISION 3. ADULT INSTITUTIONS, PROGRAMS AND PAROLE > CHAPTER 1.

RULES AND REGULATIONS OF ADULT OPERATIONS AND PROGRAMS > SUBCHAPTER 2. INMATE

RESOURCES > ARTICLE 3. LIBRARY

§ 3123. Access to Law Libraries

(a) Physical law library access means physical entry into a facility law library for the purpose of

using its legal resources. A facility law library includes, but is not limited to, a print law library or

the Law Library Electronic Delivery System (LLEDS) with any necessary print supplements.

(b) All inmates, regardless of their classification or housing status, shall be entitled to physical

law library access that is sufficient to provide meaningful access to the courts. Inmates on PLU

status may receive a minimum of 4 hours ver calendar week of requested physical law library

access, as resources are available, and shail be given higher priority to the law library resources.

Inmates on GLU status may receive a minimum of 2 hours per calendar week of requested

physical law library access, as resources are available.

/) When unable to physically access the law library, an inmate may request access to legal

material through delivery of those materials to the inmate by library staff. This process is referred

to as law library paging. An inmate shall not be limited to law livrary paging for access to legal

materials except under extraordinary circumstances including, but not limited to, the following:

(1) The inmate is directly under a prison lockdown or modified program.

(2) The inmate is under restricted movement due to his or her medical status.

(3) The inmate has been suspended from physical access to the law library pending

investigation of a serious rule violation.

(d) Inmates who are limited to law library paging due to a lockdown or modified program shali, 4

whenever possible, have their law library access restored within 16 calendar days unless a high

security risk continues to exist to prohibit physical law library access.

(e) When inmates are limited to law library paging for any reason as described in section 3123(c),

law library staff must deliver the requested legal material to their cells as soon as possible, but no

later than 16 calendar days from the date of the paging request.

(f) Disciplinary action for an inmate who is found to be guilty of a serious rule violation

pertaining to law library resources, facilities, or staff may include a suspension of all physica! iaw

library access for up to 90 calendar days. This action does uot preclude an inmate from pursuing

legal research through the reasonable use of law library paging, beginning three calendar days

after the date of suspension until the suspension period ends.

Statutory Authority

Came 2 22 Deunesnttiis. FAaleetiGB709I22 Page 3 aif 455 Fepegpee | DDH! E24

Pe

15 CCR 31 23

cmt etn La? PNET EI TS AE I ET AT TS TSE EE I

AUTHORITY:

Note: Authority cited: Section 5058, Penal Code. Reference: Section 5054, Penal Code; Ginore v.

Lynch, 319 F.Supp. 105 (N.D. Cal. 1970); Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 186);

Toussaint v. McCarthy, USDC N.D. Cal. No. C 73-1422 SAW, First Special Report of the Maitor,

August 19, 1987; Toussaint v. Rowland, USDC N.D. Cal. No. C 73-1422 SAW, Second Specil Report of

the Monitor, June 30, 1988; Zatko v. Rowland, 835 F.Supp. 1174 (N.D. Cal. 1993); Lewis v.Casey, 518

U.S. 343 (1996).

History

HISTORY: >

1. New section filed 11-24-2009; operative 12-24-2009 (Register 2009, No. 48). >=

2. Amendment of subsections (c)(1) and (d) filed 6-14-2011; operative 7-14-2011 (Register201 1, No. a

24). □□□ □

□□□

BARCLAYS OFFICIAL CALIFORNIA CODE OF REGULATIONS

Copyright © 2022 by Barclays Law Publishers All rights reserved

End of Document

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Patient Education Materials Follows:

Metered Dose Inhaler With Spacer

Inhaled medicines are the basis of treatment of asthma and other breathing problems. Inhaled medicine can only be

effective if used properly. Good technique assures that the medicine reaches the lings. Your health care provider has

asked you to use a spacer with your inhaler to help you take the medicine more effectively. A spacer is a plastic tube

with a mouthpiece on one end and an opening that connects to the inhaler on the other end.

Metered dose inhalers (MDIs) are used to deliver a variety of inhaled medicines. These include quick relief or rescue

medicines (such as bronchodilators) and controller medicines (such as corticosteroids). The medicine is delivered by

pushing down on a metal canister to release a set amount of spray.

If you are using different kinds of inhalers, use your quick relief medicine to open the airways 10—15 minutes before

using a steroid if structed to do so by your health care provider. If you are unsure which inhalers to use and the order

of using them, ask your health care provider, nurse, or respiratory therapist.

HOW TO USE THE INHALER WITH A SPACER

1. Remove cap from inhaler.

2. Ifyou using the inhaler for the first time, you will need to prime it. Shake the inhaler for 5 seconds and

release four puffs into the air, away from your face. Ask your health care provider or pharmacist if you have

questions about priming your inhaler.

3. Shake inhaler for 5 seconds before each breath in (inhalation).

4. Place the open end of the spacer onto the mouthpiece of the inhaler.

5. Position the inhaler so that the top of the canister faces up and the spacer mouthpiece faces you.

6. Put your index finger on the top of the medicine canister. Your thumb supports the bottom of the inhaler and

the spacer.

7. Breathe out (exhale) normally and as completely as possible.

Name: WITHERBEE, DAMON LLOYD 1 of 3 05/5/2022 15:54:15

MRN: BP5564

Cae 2 22a OAR) DooeeanitiSl FRleSGR/O9I2? Rage g/iaif455 Pepe | D#e5

8. Immediately after exhaling, place the spacer between your teeth and into your mouth. Close your mouth tightly

around the spacer.

9. Press the canister down with the index finger to release the medicine.

10. At the same time as the canister is pressed, inhale deeply and slowly until the lungs are completely filled. This

should take 4—6 seconds. Keep your tongue down and out of the way.

11. Hold the medicine in your lungs for S—10 seconds (10 seconds is best). This helps the medicine get into the

small airways of your lungs. Exhale.

12. Repeat inhaling deeply through the spacer mouthpiece. Again hold that breath for up to 10 seconds (10

seconds is best). Exhale slowly. If it is difficult to take this second deep breath through the spacer, breathe

normally several times through the spacer. Remove the spacer from your mouth.

13. Wait at least 15—30 seconds between puffs. Continue with the above steps until you have taken the number of

puffs your health care provider has ordered. Do not use the inhaler more than your health care provider directs

you to.

14. Remove spacer from the inhaler and place cap on mhaler.

15. Follow the directions from your health care provider or the inhaler insert for cleaning the inhaler and spacer.

If you are using a steroid inhaler, rmse your mouth with water after your last puff, gargle, and spit out the water. Do

not swallow the water.

AVOID:

* Inhalmg before or after startmg the spray of medicine. It takes practice to coordinate your breathing with

triggering the spray.

¢ Inhaling through the nose (rather than the mouth) when triggering the spray.

HOW TO DETERMINE IF YOUR INHALER IS FULL OR NEARLY EMPTY

You cannot know when an inhaler is empty by shaking it. A few inhalers are now being made with dose counters. Ask

your health care provider for a prescription that has a dose counter if you feel you need that extra help. If your inhaler

does not have a counter, ask your health care provider to help you determine the date you need to refill your inhaler.

Write the refill date on a calendar or your mhaler canister. Refill your nhaler 7—10 days before it runs out. Be sure to

keep an adequate supply of medicine. This includes making sure it is not expired, and you have a spare inhaler.

SEEK MEDICAL CARE IF:

* Symptoms are only partially relieved with your mhaker.

* having trouble using your mhaler.

* You experience some increase in phlegm.

SEEK IMMEDIATE MEDICAL CARE IF:

* You feel little or no relief with your inhalers. You are still wheezing and are feeling shortness of breath or

tightness in your chest or both.

* You have dizziness, headaches, or fast heart rate.

* You have chills, fever, or night sweats.

* There is a noticeable increase in phlegm production, or there is blood in the phlegm.

This information is not intended to replace advice given to you by your health care provider. Make sure you discuss

any questions you have with your health care provider.

Document Released: 12/18/2006 Document Revised: 05/03/2016 Document Review ed: 06/05/2014

Name: WITHERBEE, DAMON LLOYD 2 of 3 05/5/2022 15:54:15

MRN: BP5564

STP OF {TL Filet DP ANS SEP GIES CRSA EON

REASONABLE ACCOMMODATION REQUEST

CDCR 1824 (Rev. 09/17)

NAC exgse 1 of 1

INSTITUTION (Staff use only) LOG NUMBER (Staff Use Only) DATE RECEIVED BY STAFF:

MA

1GY (ole 0% 24 U2 807 202

seeeerorereeT ALK TO STAFF IF YOU HAVE AN EMERGENCY*********** O O

DO NOT use a CDCR 1824 to request health care or to appeal a health care decision. This

may delay your access to health care. Instead, submit a CDC 7362 or a CDCR 602-HC

INMATE’S NAME (Print) zi CDCR NUMBER ASSIGNMENT HOUSING

□ i Foye ayn 4 “> □

DAM On IW Phenrbew prs SLY GS- jOlL

INSTRUCTIONS:

e You may use this form if you have a physical or mental disability or if you believe you have a physical or mental disability.

* You may use this form to request a specific reasonable accommodation which, if approved, will enable you to access and/or

participate in a program, service or activity. You may also use this form to submit an allegation of disability-based discrimination.

e Submit this form to the Custody Appeals Office.

e The 1824 process is intended for an individual’s accommodation request. Each individual’s request requires a case-by-case review.

e The CDCR 1824 is a request process, not an appeal process. All COCR 1824 requests will receive a response.

e If you have received an 1824 decision that you disagree with, you may submit an appeal (CDCR 602, or CDCR 602-HC if you are

disagreeing with a medical diagnosisAreatment decision).

WHAT CAN’T YOU DO / WHAT IS THE PROBLEM? ‘ _ □ ry

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WHAT DO YOU NEED? pr } ( 4 A

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(Use the back of this form if more space is needed)

DO YOU HAVE DOCUMENTS THAT DESCRIBE YOUR DISABILITY? Yes J No (] Not Sure (_|

List and attach documents, if available: ain

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| understand that staff ma to Seep prt examine, me, and my failure to cooperate may ae this request to be disapproved.

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INMATE’S SIGNATURE DATE SIGNED

Assistance in completing this form was provided by:

Last Name First Name Signature

Cae 2 22 OAR «| Denes. FAleSGR/OSI22 Page s8aff455 Pepe | □□ eB

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Institutional Level Assignment iD

Date: WAR 15 2022 0% yO 2 I~

To: | WITHERBEE, DAMON (BP5564) a, ° f sh

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Mule Creek State Prison 5 Se

P.O. Box 409099 ; \\ sm

lone, CA 95640 ott Gf) 9"

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Tracking #: MCSP HC 22000434 Mw A LS

Due Date: 5/13/2022 yi

The Health Care Grievance Office has accepted your health care grievance for response. If you need additional

information regarding your health care grievance, contact the health care grievance coordinator at your

institution. ¢

California Code of Regulations, Title 15, Section 3999.226(c), states “The grievant has the right to submit one

health care grievance every 14 calendar days, unless it is accepted as an expedited grievance. The 14 calendar

day period shall commence on the calendar day following the grievant’s last accepted health care grievance.”

Health care grievances submitted in excess of these limitations may be subject to rejection per California Code

of Regulations, Title 15, Section 3999.234(a)(1). □

If you have additional health care needs, you are advised to utilize approved processes to access health care

services in accordance with California Correctional Health Care Services policy.

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Health Care Grievance Office Representative

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HEALTH CARE SERVICES

Care 2 22 OA )«DenesittTsl FAlesiG/OS1I22 Page 40laif455 Page| DH ee

Initials

12. | ASSIGNMENT OF BENEFITS: The patient or agent, hereby authorizes direct payment to the hospital/provider, any insurance benefits,

including but not limited to third party liability payable to or on the patient's behalf for this hospitalization or for these services, including

emergency services if rendered, at a rate not to exceed the hospital's billed charges. It is agreed that payment to the hospital by an

insurance company shall discharge the insurance company of all obligations under a policy to the extent of such payment. ;

The patient understands that he/she is financially responsible for charges not covered by this assignment. This assignment is irrevocable. Dy

13. | PHYSICIANS ARE INDEPENDENT CONTRACTORS: All physicians and surgeons furnishing services to the patient, including

the radiologist, pathologist, anesthesiologist, the emergency department physician and the like, are independent contractors and

are not employees or agents of the hospital. Some of these physicians will bill separately for their services and may not have

agreements with same insurance plans as the hospital. The undersigned acknowledges receipt of the Patient Notification Form

and may request an additional copy at this time.

The patient is under the care of and supervision of his/her attending physician and it is the responsibility of the hospital and its

nursing staff to carry out the instructions of such physician. It is the responsibility of the patient's physician or surgeon to obtain bur

the patient's informed consent, when required, to medical or surgical treatment, special diagnostic or therapeutic procedures, or

hospital services rendered to the patient under the general and special instructions of the physician.

14. | HEALTH PLAN OBLIGATION: This hospital maintains a list of health plans with which it contracts. A list of such plans is available

upon request from Patient Financial Services. The hospital has no contrac!, express or implied with any plan that does not

appear on the list. The undersigned agrees that he/she is individually obligated to pay the full charges oi all covered services ))

rencered to him/her by the hospital if he/she belongs to a plan, which does not appear on the above-mentioned list.

15. | VISITORS: You have the right to visitors of your choice, including spouse, domestic partner (including same sex domestic

partners), another family member or a friend.

The undersigned certifies that he/she has read the foregoing, received a copy, and is the patient, the patient's legal representative, or is duly

authorized by the patient,a patient's general agentto execute the abi accept its terms.

Daven bd Lhe ee ex i Nob 21/5 122 72S AMIPM

Name: Patient/Legal Representative Signature: Patient/Legal Representative Date (nivd/yy) Time

If signed by other than patient, indicate relationship:

Parent [)Spouse [Partner [jRelative [] Durable Power ofAttorney [])Conservator (| Tutor/Legal Guardian

Healthcare

If patient is unable to sign, state reason:

(_] Interpretation provided: Language:

Telephonic (1 VRI SS SS "nt"

Interpreter: Name or ID No.

(_] Face-to-face interpreter Signature: _

Witness/Representative of Tri-City Medical Center (print name) Signature

Financial Responsibility Agreement by Person Other Than the Patient or Patient's Leyal Representative.

| agree to accept financial responsibility for services rendered to the patient and to accept the terms of the Financial Agreement, Assignment of

Insurance Benefits and Health Plan Obligation provisions above.

Signature: ne

(Financially responsible party) (print name)

Date/Time:

Witness: FT SSS

(TCMC representative) (print name)

Date/Time: ws

Affix Patient Label

Tri-City Medical Center

3 arate ITHEREEE, DAMON sid

4002 Vista Way « Oceanside * CA * 92056 ce op SVASEL

art: Cder, a ee

| FIN: 7996303

EIEN! COMPTIONS OF ADMISSION | Hi

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Patient education materials

1. NO CAFFEINE: no coffee (decaf or reg), sodas, chocolate products or any kind of tea,

any aspirin that contains caffeine (Excedrin)

2. Nothing to eat or drink_after midnight on 6/2/22 —

May take Rx'd BP meds with sips of water on the day of the test.

3. Notheophylline 48 hours prior to appointment.

Pharmacologic Stress Electrocardiogram

A pharmacologic stress electrocardiogram is a heart (cardiac) test that uses nuclear imaging to evaluate the

blood supply to your heart. This test may also be called a pharmacologic stress electrocardiography.

Pharmacologic means that a medicine is used to increase your heart rate and blood pressure.

This stress test is done to find areas of poor blood flow to the heart by determming the extent of coronary

artery disease (CAD). Some people exercise on a treadmill, which naturally increases the blood flow to the

heart. For those people unable to exercise on a treadmill, a medicine is used. This medicnne stimulates your

heart and will cause your heart to beat harder and more quickly, as if you were exercising.

Pharmacologic stress tests can help determme:

* The adequacy of blood flow to your heart during increased levels of activity in order to clear you for

discharge home.

* The extent of coronary artery blockage caused by CAD.

* Your prognosis if you have suffered a heart attack.

* The effectiveness of cardiac procedures done, such as an angioplasty, which can increase the

circulation in your coronary arteries.

* Causes of chest pain or pressure.

LET YOUR HEALTH CARE PROVIDER KNOW ABOUT:

□ Any allergies you have.

« All medicines you are taking, including vitamins, herbs, eye drops, creams, and over-the-counter

medicmes.

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Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 43 of 49 Page ID #:132

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER

Plaintiff(s),

v.

NOTICE OF DISMISSAL PURSUANT

TO FEDERAL RULES OF CIVIL

PROCEDURE 41(a) or (c)

Defendant(s).

PLEASE TAKE NOTICE: (Check one)

G This action is dismissed by the Plaintiff(s) in its entirety.

G The Counterclaim brought by Claimant(s) is

dismissed by Claimant(s) in its entirety.

G The Cross-Claim brought by Claimants(s) is

dismissed by the Claimant(s) in its entirety.

G The Third-party Claim brought by Claimant(s) is

dismissed by the Claimant(s) in its entirety.

G ONLY Defendant(s)

is/are dismissed from (check one)G Complaint, G Counterclaim, G Cross-claim, G Third-Party Claim

brought by .

The dismissal is made pursuant to F.R.Civ.P. 41(a) or (c).

Date Signature of Attorney/Party

NOTE: F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for

summary judgment, whichever first occurs.

F.R.Civ.P. 41(c): Counterclaims, cross-claims & third-party claims may be dismissed before service of a responsive

pleading or prior to the beginning of trial.

CV-09 (03/10) NOTICE OF DISMISSAL PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 41(a) or (c)

Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 44 of 49 Page ID #:133

FULL NAME

COMMITTED NAME (if different)

FULL ADDRESS INCLUDING NAME OF INSTITUTION

PRISON NUMBER (if applicable)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER

To be supplied by the Clerk

PLAINTIFF,

v. CIVIL RIGHTS COMPLAINT

PURSUANT TO (Check one)

G 42 U.S.C. § 1983

DEFENDANT(S). G Bivens v. Six Unknown Agents 403 U.S. 388 (1971)

A. PREVIOUS LAWSUITS

1. Have you brought any other lawsuits in a federal court while a prisoner: G Yes G No

2. If your answer to “1.” is yes, how many?

Describe the lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on an

attached piece of paper using the same outline.)

CIVIL RIGHTS COMPLAINT

CV-66 (7/97) Page 1 of 6

Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 45 of 49 Page ID #:134

a. Parties to this previous lawsuit:

Plaintiff

Defendants

b. Court

c. Docket or case number

d. Name of judge to whom case was assigned

e. Disposition (For example: Was the case dismissed? If so, what was the basis for dismissal? Was it

appealed? Is it still pending?)

f. Issues raised:

g. Approximate date of filing lawsuit:

h. Approximate date of disposition

B. EXHAUSTION OF ADMINISTRATIVE REMEDIES

1. Is there a grievance procedure available at the institution where the events relating to your current complaint

occurred? G Yes G No

2. Have you filed a grievance concerning the facts relating to your current complaint? G Yes G No

If your answer is no, explain why not

3. Is the grievance procedure completed? G Yes G No

If your answer is no, explain why not

4. Please attach copies of papers related to the grievance procedure.

C. JURISDICTION

This complaint alleges that the civil rights of plaintiff

(print plaintiff's name)

who presently resides at ,

(mailing address or place of confinement)

were violated by the actions of the defendant(s) named below, which actions were directed against plaintiff at

(institution/city where violation occurred)

CIVIL RIGHTS COMPLAINT

CV-66 (7/97) Page 2 of 6

Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 46 of 49 Page ID #:135

on (date or dates) , , .

(Claim I) (Claim II) (Claim III)

NOTE: You need not name more than one defendant or allege more than one claim. If you are naming more than

five (5) defendants, make a copy of this page to provide the information for additional defendants.

1. Defendant resides or works at

(full name of first defendant)

(full address of first defendant)

(defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual G official capacity.

Explain how this defendant was acting under color of law:

2. Defendant resides or works at

(full name of first defendant)

(full address of first defendant)

(defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual G official capacity.

Explain how this defendant was acting under color of law:

3. Defendant resides or works at

(full name of first defendant)

(full address of first defendant)

(defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual G official capacity.

Explain how this defendant was acting under color of law:

CIVIL RIGHTS COMPLAINT

CV-66 (7/97) Page 3 of 6

Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 47 of 49 Page ID #:136

4. Defendant resides or works at

(full name of first defendant)

(full address of first defendant)

(defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual G official capacity.

Explain how this defendant was acting under color of law:

5. Defendant resides or works at

(full name of first defendant)

(full address of first defendant)

(defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual G official capacity.

Explain how this defendant was acting under color of law:

CIVIL RIGHTS COMPLAINT

CV-66 (7/97) Page 4 of 6

Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 48 of 49 Page ID #:137

D. CLAIMS*

CLAIM I

The following civil right has been violated:

Supporting Facts: Include all facts you consider important. State the facts clearly, in your own words, and without

citing legal authority or argument. Be certain you describe, in separately numbered paragraphs, exactly what each

DEFENDANT (by name) did to violate your right.

*If there is more than one claim, describe the additional claim(s) on another attached piece of paper using the same

outline.

CIVIL RIGHTS COMPLAINT

CV-66 (7/97) Page 5 of 6

Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 49 of 49 Page ID #:138

E. REQUEST FOR RELIEF

I believe that I am entitled to the following specific relief:

(Date) (Signature of Plaintiff)

CIVIL RIGHTS COMPLAINT

CV-66 (7/97) Page 6 of 6

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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