Bryant v. Atchley

• Court: District Court, N.D. California
• Decided: July 28, 2022
• Docket: 3:21-cv-01347
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FARREN BRYANT, Case No. 21-cv-01347-EMC

8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTION TO DISMISS IN PART, WITH LEAVE TO AMEND THE 10 M. ATCHLEY, et al., COMPLAINT IN PART 11 Defendants. Docket No. 21

12 13 14 I. INTRODUCTION 15 Farren Bryant, an inmate at the California State Prison - Corcoran in Corcoran, California, 16 filed this pro se civil rights action under 42 U.S.C. § 1983. See Docket No. 1 (“Complaint”). This 17 matter is now before the Court for consideration of Defendants’ motion to dismiss the complaint. 18 See Docket No. 21 (“Dismissal Motion” or “MTD”). For the reasons stated below, the Dismissal 19 Motion is granted in part, as to Defendant Atchley, and denied in part, as to Defendant Lam. Also 20 for the reasons stated below, Mr. Bryant is ordered to amend the Complaint to provide more 21 details as to his claim against Defendant Rivera,1 or to notify the Court that he wishes to stand on 22 the Complaint as pleaded. 23 II. BACKGROUND 24 A. Allegations of Complaint 25 Mr. Bryant alleges the following in his Complaint: 26

27 1 The Complaint alternately refers to Defendant Rivera and to Defendant Revira. See generally, 1 In 2020, Mr. Bryant was incarcerated in Facility B at Salinas Valley State Prison 2 (“SVSP”). Compl. at 2. On August 10, 2020, Mr. Bryant was jogging around Facility B’s 3 exercise yard when he “stepped [i]n one of many Gopher holes that cover the yard.” Id. at 3.2 Mr. 4 Bryant contends that, prior to his injury, the “gopher holes [] went ignored for years by the 5 defendant Atchley’s assigned ground keepers.” Id. at 11. 6 Mr. Bryant’s “left knee popped, then buckled,” and Mr. Bryant fell. Id. at 3. When Mr. 7 Bryant attempted to get up, “his knee would not support him.” Id. Mr. Bryant sought medical 8 care for his knee injury. See id. Non-defendant Nurse Helen gave Mr. Bryant an ice pack on 9 either the day of his injury or the day after. See id. at 3-4. Two days after his injury, Mr. Bryant 10 again saw Nurse Helen, and expressed concern regarding his injury. See id. at 4. As a result of his 11 expression of concern, Mr. Bryant was given an x-ray three days after his injury. See id. 12 However, Mr. Bryant was not seen by a doctor on this day. See id. 13 On August 14, 2020, four days after his injury, Mr. Bryant’s knee had not improved. See 14 id. On that day, his knee again “buckled and completely gave out.” Id. Mr. Bryant was then 15 given a second x-ray. See id. Defendant Lam reviewed the second x-ray, told Mr. Bryant that the 16 second x-ray did not reveal any fracture of dislocation, and diagnosed a sprain. See id. Defendant 17 Lam did not conduct a physical examination of Mr. Bryant’s knee, even after Mr. Bryant asked 18 Defendant Lam to do so. See id. at 4-5. Defendant Lam prescribed the use of a wheelchair and 19 Tylenol. See id. Mr. Bryant contends that Defendant Lam refused to conduct a physical 20 examination because “defendant Dr. Lam and defendant K. Rivera,” the Chief Medical Officer of 21 SVSP, “were attempting to be cost effective.” Id. at 6. 22 The prescription for Tylenol and wheelchair use did not resolve Mr. Bryant’s pain. See id. 23 at 5. Mr. Bryant could not extend his knee when seated or when lying in a prone position. See id. 24 On August 25, 2020, Mr. Bryant wrote a Healthcare Grievance requesting an MRI, ultrasound, or 25 surgery. See id. His request was denied. See id. at 5-7. 26 On August 30, 2020, and September 10, 2020, Mr. Bryant again requested medical care. 27 1 See id. at 7. Mr. Bryant was seen by non-defendant Dr. Garcia via Telemed. See id. at 7-8. Dr. 2 Garcia prescribed a wheelchair and physical therapy. See id. 3 On October 7, 2020, non-defendant Dr. Saveri performed a physical examination on Mr. 4 Bryant’s knee and ordered an MRI. See id. at 8-9. The MRI was performed on October 29, 2020. 5 See id. at 9. “The MRI revealed [a] Medial Meniscal Tear, Extensive Quadricep Tendon Tear, and 6 Degeneration with Patellar Spurring and Patellar Tendinitis.” Id. On November 9, 2020, Dr. 7 Saveri referred Mr. Bryant to an orthopedic surgeon. See id. at 9. Mr. Bryant met with the 8 orthopedic surgeon, non-defendant Dr. Lameer, on November 23, 2020. See id. at 10. 9 Dr. Lameer told Mr. Bryant that the three-month delay in seeking surgery had reduced the 10 chance that Mr. Bryant would fully recover from his injury. See id. at 10. Dr. Lameer stated that 11 the surgery should have been performed no later than two weeks after Mr. Bryant’s injury. See 12 id.; see also id., Ex. K (“Suggest repair . . . as soon as possible . . . Delay would only make the 13 procedure more difficult.”). Mr. Bryant eventually was given surgery to repair his knee. See id. at 14 11. Despite surgery, his “left [knee] will never properly function normal[ly] again.” Id. 15 Mr. Bryant contends that Defendant Atchley violated Mr. Bryant’s Eighth Amendment 16 rights by “allowing for hazardous conditions of Gopher holes” and “fail[ing] to adequately 17 supervise hi[m]self/herself or appoint someone else to supervise the yard’s ground keepers.” Id. at 18 12. Mr. Bryant contends that Defendants Lam and Rivera were deliberately indifferent to Mr. 19 Bryant’s medical need, in violation of the Eighth Amendment. See id. at 13. 20 B. Procedural History 21 This case originally was assigned to Magistrate Judge Joseph Spero, who reviewed the 22 Complaint under 28 U.S.C. §1915A, which requires the district court to identify any cognizable 23 claims, and to dismiss any claims which are frivolous, malicious, fail to state a claim upon which 24 relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 25 Magistrate Judge Spero issued an order of service in which he found that the complaint stated “a 26 cognizable claim for relief against [Defendant] Atchley for violating [Mr. Bryant’s] Eighth 27 Amendment rights by being deliberately indifferent to plaintiff’s safety,” and “a cognizable claim 1 Bryant’s] serious medical needs in violation of his Eighth Amendment rights.” Docket No. 8 at 2- 2 3. 3 The case was later reassigned to the undersigned when one of the originally named 4 Defendants could not be served, and thus was unable to consent to a magistrate judge presiding 5 over the case. Docket Nos. 17-19. Defendants now move to dismiss the Complaint pursuant to 6 Rule 12(b)(6) of the Federal Rules of Civil Procedure. Docket No. 21. 7 III. DISCUSSION 8 Defendants move to dismiss this action. See Docket No. 21. 9 Specifically, Defendants argue that Mr. Bryant’s claims against Defendant Atchley fail 10 because Mr. Bryant alleges only that Defendant Atchley failed adequately to supervise the 11 groundskeepers, which is insufficient to support a claim. See id. at 8-11. Defendants also argue 12 that the Complaint improperly joined claims and Defendants, and thus should be dismissed under 13 Federal Rules of Civil Procedure 18 and 20. See id. at 4-8. Defendants make no arguments 14 regarding Defendant Rivera because he has not been served with the Complaint. See generally, 15 id.; see also Docket No. 17 (stating that no one by that name was employed at SVSP). 16 For the reasons stated below, the Court agrees that Mr. Bryant’s claims fail as to Defendant 17 Atchley, and GRANTS Defendants’ request to dismiss Defendant Atchley from this action. 18 Because Mr. Bryant’s claims against Defendant Atchley have been dismissed, the Court finds that 19 Defendants’ joinder arguments are moot, and DENIES the Dismissal Motion as to those 20 arguments. 21 The Court notes that Mr. Bryant’s claims against Defendant Rivera appear to fail for the 22 same reason as his claims against Defendant Atchley: Mr. Bryant alleges no direct involvement 23 from Defendant Rivera in the alleged wrongs, and appears to have named him as a supervisor. 24 The Court thus orders Mr. Bryant to amend his Complaint to identify Defendant Rivera’s direct 25 involvement in the alleged Eighth Amendment violations, or to notify the Court that Mr. Bryant 26 intends to stand on his Complaint as pleaded. If Mr. Bryant chooses the latter, the Court will 27 dismiss Defendant Rivera from this action for the reasons stated below. 1 A. Rule 12(b)(6) Standards 2 Federal Rule of Civil Procedure 12(b)(6) permits a defendant to move to dismiss a 3 complaint on the ground that there is a “failure to state a claim upon which relief can be granted.” 4 A motion to dismiss should be granted if the plaintiff fails to proffer “enough facts to state a claim 5 to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) 6 (abrogating Conley v. Gibson, 355 U.S. 41 (1957)). The Court “must accept as true all of the 7 factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and 8 must construe pro se pleadings liberally, Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010). 9 The Court need not accept as true allegations that are legal conclusions, unwarranted deductions of 10 fact or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988, 11 amended, 275 F.3d 1187 (9th Cir. 2001). 12 B. Mr. Bryant Cannot Sue a Defendant not Personally Involved in the Wrongs 13 Mr. Bryant’s claims against Defendant Atchley fail because Defendant Atchley was not 14 personally involved in the wrongs against Mr. Bryant. 15 Liability may be imposed on an individual defendant under 42 U.S.C. § 1983 only if the 16 plaintiff can show that the defendant’s actions both actually and proximately caused the 17 deprivation of a federally protected right. Lemire v. Cal. Dept. of Corr. & Rehab., 726 F.3d 1062, 18 1085 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Either personal 19 involvement or integral participation of each defendant in the alleged constitutional violation is 20 required before liability may be imposed. See Jones v. Williams, 297 F.3d 930, 936 (9th Cir. 21 2002). Even at the pleading stage, “[a] plaintiff must allege facts, not simply conclusions, that 22 show that an individual was personally involved in the deprivation of his civil rights.” Barren, 23 152 F.3d at 1194. 24 Here, Mr. Bryant fails to identify any personal involvement by Defendant Atchley in the 25 alleged wrongs. See generally, Compl. The Complaint contains only the following allegations 26 against Defendant Atchley: 27 • “Defendant Atchley was at all relevant times the Warden of SVSP, and is sued 1 responsible for the overall operations, functions and maintena[n]ce up-keeping at 2 SVSP.” Id. at 2. 3 • “The defendant Atchley, (et al.), carry the blame of the Gopher holes problem on 4 the Facility B yard at SVSP that caused plain[]tiff’s ‘major’ left knee injury, in 5 violation of the Health and Saf[e]ty Code(s). . . . The hazardous conditions of a 6 recreation yard being riddled with gopher holes that went ignored for years by the 7 defendant Atchley’s assigned ground keepers[] should not have occurred and if the 8 recreation yard was being properly kept then plaintiff would have never suffered a[] 9 knee injury.” Id. at 11. 10 • Defendant Atchley violated Mr. Bryant’s Eighth Amendment rights “by his/her 11 actions of allowing for hazardous conditions of Gopher holes,” and” by his/her 12 failure to adequately supervise hi[m]self/herself or appoint someone else to 13 supervise the yard’s ground keepers.” Id. at 12. 14 None of these allegations suggest that Defendant Atchley was personally responsible for walking 15 the grounds and checking for gopher holes, or even that Defendant Atchley was aware there were 16 gopher holes on the exercise yard of Facility B. Mr. Bryant thus failed to allege facts to show that 17 Defendant Atchley “was personally involved” in causing his gopher hole-induced injury, Barren, 18 152 F.3d at 1194, and thus has failed to state a claim against Defendant Atchley. 19 To the extent Mr. Bryant intends to sue Defendant Atchley because, as Warden, he may 20 supervise the SVSP groundskeepers, this is impermissible. “In a § 1983 suit . . . masters do not 21 answer for the torts of their servants,” so “each Government official, his or her title 22 notwithstanding, is only liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 23 677 (2009). Under no circumstances is there liability under section 1983 on the theory that one is 24 responsible for the actions or omissions of another. See Taylor v. List, 880 F.2d 1040, 1045 (9th 25 Cir. 1989) (“There is no respondeat superior liability under section 1983.”). It is insufficient for a 26 plaintiff generally to allege that supervisors knew about a constitutional violation and that they 27 generally created policies and procedures that led to the violation. See Hydrick v. Hunter, 669 1 actually maintained the yard, Mr. Bryant’s claim for injury due to the gopher holes lies against the 2 groundskeeping crew, not against Defendant Atchley. 3 Nor would Monell liability be appropriate here. In “limited circumstances,” a municipal 4 policy may be based upon the local government’s decision not to train certain employees about 5 their legal duty to avoid violating citizens’ rights. Connick v. Thompson, 563 U.S. 51 at 61 6 (2011). The local government’s liability under § 1983 is at “its most tenuous,” however, when the 7 claim is based on a failure to train. Id. Only where a failure to supervise and train reflects a 8 “‘deliberate’ or ‘conscious’ choice’” by a local government can the “shortcoming be properly 9 thought of as a city ‘policy or custom’ that is actionable under § 1983.” City of Canton v. Harris, 10 489 U.S. 378, 389 (1989). For Monell liability to be based on a failure to train, constitutional 11 violations must be “so predictable” that the failure to train amounts to a “conscious disregard” for 12 those constitutional rights. Connick, 563 U.S. 51 at 71 (emphasis in original). Thus, evidence of 13 the failure to train a single employee is ordinarily insufficient to establish that the failure to train 14 was a municipality’s deliberate policy. Id. at 66 (evidence of a single Brady violation insufficient 15 to establish policy, notwithstanding four other Brady violations in past ten years by same 16 prosecutor’s office because they did not involve the failure to turn over the same type of evidence 17 to the defense); Blankenhorn v. City of Orange, 485 F.3d 463, 484-85 (9th Cir. 2007) (absent 18 evidence of a ‘program-wide inadequacy in training,’ any shortfall in a single officer’s training 19 was classified as negligence rather than deliberate indifference, therefore plaintiff did not meet his 20 burden to withstand summary judgment). An inadequate training policy cannot be inferred from a 21 single incident. Hyde v. City of Wilcox, 23 F.4th 863, 875 (9th Cir. 2022). Here, there are no 22 allegations that any other prisoner had ever been injured in the gopher holes, and so Mr. Bryant 23 would have the Court infer a failure-to-train based on a single incident, which is impermissible. 24 See id. There also are no facts to show a system-wide failure to train groundskeepers to fill in 25 gopher holes, which again makes Monell liability inappropriate. See Blankenhorn, 485 F.3d at 26 484-85. Finally, even if Mr. Bryant had presented such evidence, there is no showing that 27 Defendant Atchley was directly and personally responsible for training groundskeepers to fill in 1 respondeat superior. See Taylor, 880 F.2d at 1045 (“There is no respondeat superior liability 2 under section 1983.”). 3 Mr. Bryant attempts to avoid dismissal by arguing in his Opposition, for the first time, that 4 Defendant Atchley was aware of the gopher holes because SVSP staff had previously been injured 5 by the gopher holes. See Opp. at 4-5. However, Mr. Bryant reiterates that he sued Defendant 6 Atchley as a supervisor rather than a direct participant in the alleged wrong, which is 7 impermissible. See id. at 2 (arguing that, because Defendant Atchley was the warden of SVSP, he 8 was responsible for maintenance and for ensuring groundskeepers did their jobs), id. at 5 (same); 9 see also id. at 2-3 (arguing that Defendant Atchley is liable as the “hiring authority”), id. at 6 10 (same). 11 First, if Mr. Bryant had any facts showing Defendant Atchley’s personal involvement in 12 Mr. Bryant’s injury, those facts needed to be alleged in his Complaint rather than argued in his 13 Opposition. See generally, MTD (arguing this point). As the Ninth Circuit has explained, “[i]n 14 determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint 15 to a plaintiff’s moving papers, such as a memorandum in opposition to a defendant’s motion to 16 dismiss. . . . The focus of any Rule 12(b)(6) dismissal—both in the trial court and on appeal—is 17 the complaint.” Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) 18 (emphasis in original; citations omitted). It thus would not be proper for the Court to consider 19 allegations raised for the first time in Mr. Bryant’s Opposition. See Shek v. Cal. Nurses 20 Ass’n/Caregivers & Healthcare Emps. Union, No. C-10-1483-EMC, 2010 WL 3155830, at *1 21 (N.D. Cal. Aug. 9, 2010) (noting that the papers the plaintiff submitted in support of his opposition 22 to a dismissal motion “may not be considered for purposes of a motion to dismiss”). 23 Second, even were the Court to consider allegations raised in the Opposition rather than in 24 the Complaint, Mr. Bryant’s Opposition still would not show that Defendant Atchley may be held 25 liable. As explained above, it is well-settled that where there is no evidence that the supervisor 26 was personally involved or connected to the alleged violation, the supervisor may not be liable. 27 See Edgerly v. City and Cnty. of S.F., 599 F.3d 946, 961 (9th Cir. 2010). In other situations in 1 facility, the Ninth Circuit has affirmed dismissal of allegations against the supervisor. See id. at 2 961. Mr. Bryant made clear in his Opposition that he sued Defendant Atchley as a supervisor 3 rather than because Defendant Atchley directly caused Mr. Bryant’s injury, see Opp. at 2-3, 5-6, 4 and so his claims still fail even if the Court considers the Opposition’s allegations. 5 To the extent Mr. Bryant would argue that Defendant Atchley should be held liable 6 because he was aware of the gopher holes (which, again, is not alleged in the Complaint), even in 7 the Opposition Mr. Bryant does not provide facts to support this argument. Rather, he states that 8 Defendant Atchley’s quarterly facility tours, and the fact that staff had previously injured 9 themselves in gopher holes, were “more than enough [to] know the [gopher hole] hazard existed.” 10 Opp. at 5. These statements do not demonstrate that Defendant Atchley had actual knowledge that 11 the gopher holes existed and posed a risk to prisoners, as is required to state an Eighth 12 Amendment claim.3 Rather, for Mr. Bryant’s allegation regarding Defendant Atchley’s visits to 13 support a contention that Defendant Atchley had subjective knowledge of the gopher holes and the 14 risks they posed, the Court would have to presume (without supporting facts) that Defendant 15 Atchley personally visited Facility B’s exercise yard; saw the gopher holes while there; realized 16 that the gopher holes were a recurring problem that the groundskeepers had not fixed, rather than 17 recently dug by wild animals; and decided not to instruct the groundskeepers to fix the holes. 18 Similarly, the allegation regarding staff injuries would require the Court to presume (again without 19 supporting facts) that Defendant Atchley was personally informed when a staff member injured 20 himself; was given details of that injury (e.g., “the staff member fell in a gopher hole on B-yard”) 21 rather than a summary (e.g., “the staff member was injured during a fall”); knew that prisoners 22 accessed the same location at which the staff member was injured; and decided not to instruct the 23 groundskeepers to fix the holes. Both conclusions require too many presumptions to be accepted 24 3 See Harrington v. Scribner, 785 F.3d 1299, 1304 (9th Cir. 2015) (“To prove deliberate 25 indifference, subjective recklessness is required, that is, an official ‘cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the 26 official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm 27 exists, and he must also draw the inference.’ . . . Harrington was not entitled, as he argues here, to 1 here. Moreover, even if the Court were to accept these conclusions and infer that Defendant 2 Atchley had subjective knowledge of the gopher holes and the risks they posed, this would not 3 overcome the separate bar against holding Defendant Atchley responsible on a theory of 4 respondeat superior. 5 Because the Complaint did not allege any facts to show that Defendant Atchley was 6 personally involved in Mr. Bryant’s injury, the claim against Defendant Atchley is DISMISSED. 7 Because the Opposition also failed to provide any facts sufficient to overcome the general bar 8 against supervisory liability, dismissal is without leave to amend in this action. 9 For Mr. Bryant’s benefit, the Court notes that this means that Mr. Bryant cannot re-allege 10 his safety claim in the instant action, although he could file a new lawsuit on his safety claim at a 11 later date if he sued a proper defendant, such as a groundskeeper. 12 C. Defendants’ Joinder Arguments are Moot 13 Defendants argue that Mr. Bryant improperly sued unrelated Defendants, and filed a 14 lawsuit containing unrelated claims. MTD at 4-8. Specifically, Defendants argue that the safety 15 claim for the gopher hole-induced injury against a custodial Defendant Atchley is unrelated to the 16 medical needs claim against medical Defendants Lam and Rivera. See id. 17 The Court dismissed Mr. Bryant’s safety claim. See supra III.B. Thus, the only claim 18 remaining in this action is the medical needs claim, filed against medical defendants. Defendants’ 19 joinder arguments are thus moot, and the Dismissal Motion is DENIED as to the medical needs 20 claim. 21 The Court previously found that Mr. Bryant had stated a cognizable claim against 22 Defendant Lam for deliberate indifference to serious medical needs. See Docket No. 8 at 2-3. 23 Because the Court denies Defendants’ motion as to that claim, it remains in this action. 24 D. More Information is Needed about Defendant Rivera 25 As noted above, Mr. Bryant sued two medical personnel: Defendant Lam directly 26 interacted with Mr. Bryant and refused to conduct a physical examination, and Defendant Rivera 27 is the Chief Medical Officer of SVSP. See generally, Compl. 1 Rivera, nor does it include any facts to suggest that Defendant Rivera was familiar with Mr. 2 Bryant’s medical needs. See generally, Compl. Indeed, the only factual allegation as to 3 Defendant Rivera is that he was “attempting to be cost effective.” Id. at 6. The exhibits attached 4 to the Complaint do not mention Defendant Rivera at all. See generally, Compl., Exs. It therefore 5 appears that, like Defendant Atchley, Mr. Bryant sued Defendant Rivera only because he is a 6 supervisor. 7 As explained supra III.A, Mr. Bryant may not proceed against a defendant unless that 8 individual had some personal involvement in the harm done to Mr. Bryant. Because Mr. Bryant 9 did not include facts to suggest that Defendant Rivera had some personal involvement in the harm, 10 Mr. Bryant’s medical needs claim is DISMISSED as to Defendant Rivera. However, because this 11 defect does not appear to be incurable, and because a factually-supported claim against Defendant 12 Rivera would clearly be properly joined to the claim against Defendant Lam, dismissal of the 13 claim against Defendant Rivera is WITH LEAVE TO AMEND. Mr. Bryant may file an 14 amended complaint showing Defendant Rivera’s personal involvement in the harm caused to Mr. 15 Bryant, or may inform the Court that he elects to stand upon the original Complaint. In the latter 16 instance, this action will proceed only against Defendant Lam. 17 IV. CONCLUSION 18 For the foregoing reasons, Defendant’s motion to dismiss is GRANTED in PART and 19 DENIED in PART. Docket No. 21. The Court has (a) dismissed without leave to amend the 20 safety claim against Defendant Atchley, (b) declined to dismiss the medical needs claim against 21 Defendant Lam, and (c) granted leave to amend the medical needs claim against Defendant 22 Rivera. 23 If Plaintiff wishes to file an amended complaint, he must file and serve an amended 24 complaint no later than September 15, 2022. The amended complaint must comply with the 25 directions in this order and must include the caption and civil case number used in this order and 26 the words AMENDED COMPLAINT on the first page. Plaintiff is cautioned that his amended 27 complaint must be a complete statement of his claims, except that he may not repeat claims the 1 Court has dismissed from this action. See Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2 2012) (en banc) (“For claims dismissed with prejudice and without leave to amend, we will not 3 require that they be repled in a subsequent amended complaint to preserve them for appeal. But 4 for any claims voluntarily dismissed, we will consider those claims to be waived if not repled.”). 5 If Mr. Bryant does not file an amended complaint by the deadline, or if Mr. Bryant files a 6 notice that he wishes to stand on the allegations in his original Complaint, then the action will 7 proceed as to the medical needs claim against Defendant Lam. The Court will set a briefing 8 schedule as to that claim upon the receipt of a response from Mr. Bryant, or upon expiration of the 9 deadline to amend. 10 This order disposes of Docket No. 21. 11 12 IT IS SO ORDERED. 13 14 Dated: July 28, 2022 15 16 ______________________________________ EDWARD M. CHEN 17 United States District Judge 18 19 20 21 22 23 24 25 26 27