Damon Witherbee v. Dan Dow

• Court: District Court, C.D. California
• Decided: August 9, 2022
• Docket: 2:22-cv-02027
• Status: Unknown

Opinion

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

1 2 3 UNITED STATES DISTRICT COURT 4 CENTRAL DISTRICT OF CALIFORNIA 5

6 7 DAMON WITHERBEE, Case No. 2:22-cv-2027-MWF (MAR) 8 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 Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 3 of 49 Page ID #:92

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 Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 4 of 49 Page ID #:93

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 Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 5 of 49 Page ID #:94

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 /// 25 26 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). 5 Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 6 of 49 Page ID #:95

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 Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 7 of 49 Page ID #:96

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 7 Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 8 of 49 Page ID #:97

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. 8 Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 9 of 49 Page ID #:98

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 Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 10 of 49 Page ID #:99

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 Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 11 of 49 Page ID #:100

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 Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 12 of 49 Page ID #:101

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 Case 2:22-cv-02027-MWF-MAR Document 13 Filed 08/09/22 Page 13 of 49 Page ID #:102

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

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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

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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: ‘tae C\g nw ws a +. Soa. LC hemes - cv ~ Nites “push a \roaak whak bon Ww aX + yhow T 3a) som, he wre 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

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 } d ‘ ‘ : “a : _ 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: Cl yr Fo LY Vass Brg AAI i shales 4S cM) 44 = thy : 7 CE I/O ° —_ = i id Lf. 4 * oy. au phe (etrlithionrenY AuL CS £00 tect, 4 i f) > 4 : LLICAATD - Veo ak y AAT Vv : LA — LP! hil met gleccccd Guuty 2 PE Cex. Ab we A pay i” diel at guar fapavd aarel bold an tho glgtigel arg! + gO = af AL wae Pry ft at dt e ce Le

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. = ae ft it Pg “i “fii fa ei : A atte Aaue Lack of ox-yg be waasae = roe t a “hei oO fF fo 1. ce Gant □□□ — teed = (tiara inane fra 2 a x ej Loe £-C 8 Mel ff us < Pee Le AAC, pupil Ahdir Wha age deta ts Aol

<= “6 Abd at” wy ft i ee = AAs Ae Diet ann” seem □□□ tec i Zz. WLALA1 Lb LPC oo Aa ee = (eo De le

*]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: ye A “Letty fl eh a eee Ari SSAr ZA flag aagl Atfferrtl frog! tT hast □□□ Le ‘ J i 72 . ohh Las A

HL tees : Apia peee the a cape a ae LT fitiins, after g2tlite a Lrtath.- leiclks. + 7 ef age = 4A ZA) ~2t-t-F <1 a2 0 Jae A g fl Pte oe of tg ell of, Ino A BRetastie #62 Laut, 4 = Le Aoti~> * A ait anit 1D Gari] f cs ; 4 ie □ r 7/ pyrite KA 1h Shi Lt Ti fd ag 6 fi CH Dr ng es Lt A t= A = is reliicwle 7 = eet

‘| ) it i i of kt =) ye /Ze2 2 pagietbe. — (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: — a ae. edd VCS LM WN pte le? 2-9 eee yo oph. 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:

¢ Fc, os MCSPry Wh" WAR 1.0 1602 os STAFF USE ONLY ¥ ue 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; □□ ly ) / Mile zs) / -/y5 Receivéd by os Date / Time Witness a Date / Time i «Aix Patient Label SSS @) @ Tri-Crty Medical Center HITHERBEE, Damon: 4092 Vista Way + Oceanside * CA + 92056 DOB: 69/19/1961 oe : ATT; Cdes, Pate dat . FIN: 709-303 dt a Wait JUSTICE INVOLVED PATIENT'S Il; ii aiiye Nyaa aseeenstnes | HTN} rine if} a! i ai! 1) q i!

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Came 2 Z2-ew OZONE «Dunes. FAleeGR/O9I22 Page 23aff455 Page| Db 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: Hoa ee AAS WN N PLE? 2-7 ees so VW oph. [AC Roa aia Ady MS Dred Le conte ks upAs ah Mi pred L 7 = ‘ es & 3 j _ haeyed Ave Such on sed OC aN Ve eth AL) } r ON ORE. uy f Range

Se □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ Supporting Documents Attached. Refer to CCR 3999.227 □□ Yes M’No i Z ; . : ff b i sf □□ = 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 ~ HCGO Use Only: Date closed and mailed/delivered to grievant. * PLE nS ro 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 ge des 4.Comments:_4 p p rot Lads Ade eek

Came 2 22-0 C207 Dounresntts. §=FAlesti 8/0972? Pe oe eee 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. ee 8 ee) ee eae ee ee oe ee ee SS SSS SS 9)! ieee eae ee el i eS eS SS SS — eee! anes 8 A ee ee ee eS SS SSS EES oo ee Se ee ES SS a eS 2 ae ee ee lel a ee ee =. ae a eee ee eee es a ee et ee ee eee SS I I I II III III one a ea SS ee ee SS Se Se 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: SS eS ee SS Oe SS Grievant Signature: Date Submitted:

Sankt eh MCSPS wht" WAR 10 260% STAFF USE ONLY Fue 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. A i Pid Loma “7 rust fre coun) Zz b wnt. RS it

Bo NOT write below this fine. If' more space is required, write om backs 0 Ci ee 2 INTERVIEWED BY DATE a DISPOSITION SSS eee ee

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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

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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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Cae 2 22 OAR «Donets. FAleGR/OSI22 Page s@aif455 Peep | Ibi 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 ad Con XG Le wt, I — wl due k C R ee A 0, VreeA ke Tee s\ Valine se Niererte (La be Pobre Qf oor aA th 2th Pere A t Og Ata E - md □ WHY CAN’T YOU BO IT? f i, fl 5 : Cel adh on , Pap Vet we HI 4h ~ A Aer aT NNO :

WHAT DO YOU NEED? pr } ( 4 A # - aes ey Fe oly — £ k VY “AAAS bref 5 i}

(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 as Lb, : init f CG Kyoc Weep oo ory O144) OL EPO phen ry cee ar ie 7 | understand that staff ma to Seep prt examine, me, and my failure to cooperate may ae this request to be disapproved. LA / 7 f 2 | Jaz 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

□ iad | 3 hay: ee : mo saa Fh: fea @& = HEALTHCARESERVICES «(3 ‘Nee * ene" : Institutional Level Assignment iD Date: WAR 15 2022 0% yO 2 I~ To: | WITHERBEE, DAMON (BP5564) a, ° f sh #B 008 1101001LP \- {fs Le Mule Creek State Prison 5 Se P.O. Box 409099 ; \\ sm lone, CA 95640 ott Gf) 9" SS | Th | } 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. #4 a 4 Rc P me et ALT nee ay i' { Health Care Grievance Office Representative Mule Creek State Prison heme = YS Fy □□ □

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 Wa, | | i Ball “a IOAN

Came 2 ZZ OO resents. FAIR CR/OSIZ2 Page 2baif455 Peegpe| Dt B30

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. Person Full Name WITHERBEE, DAMON 6 of 12 06/1/2022 20:17:08 LLOYD CDCR (Encounter Alias) BP5564

Coe DomumenttTsl FileiiGs/0si22 Page 4Doff4s Page| a BRE Neydl Wirkergee SPSS C4 CORT OR ATTORNEY GENERAL'S Pd □ lol 1 OFFICE USE ONLY P.O Rox 04 Q Tene oY AS ot □ 1 \

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COURT OR ATTORNEY GENER AL'S apf 5 ke | toes 10> OFFICE USE ONLY tend (PO 7 I ees - NAME & CDCRA ES Af PP EAD Le Tdi

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)