Gonzales v. Madden

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Helidoro S. GONZALES, Case No.: 23-cv-2181-AGS-BJC 4 Plaintiff, ORDER: (1) GRANTING IN FORMA 5 v. PAUPERIS MOTION (ECF 2); 6 Raymond MADDEN, et al., (2) SCREENING AND DISMISSING IN PART COMPLAINT (ECF 1); 7 Defendants. (3) DENYING AS MOOT MOTION 8 TO CORRECT (ECF 4); AND (4) GRANTING LEAVE TO FILE 9 EXCESS PAGES (ECF 5) 10

11 In this civil-rights action under 42 U.S.C. § 1983, inmate Helidoro Gonzales alleges 12 that his Eighth Amendment rights were violated when prison employees were deliberately 13 indifferent to his serious medical needs and used excessive force against him. (See ECF 1, 14 at 5–20.) For the reasons below, the Court grants Gonzales’s motion to proceed in forma 15 pauperis and dismisses some of his claims with leave to amend. 16 MOTION TO PROCEED IN FORMA PAUPERIS 17 Parties instituting most civil actions in federal court must pay a filing fee of $402.1 18 See 28 U.S.C. § 1914(a). A party may initiate a civil action without prepaying the required 19 filing fee if the Court grants leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a); 20 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 21 To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit 22 regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 23 (9th Cir. 2015). Prisoners seeking to establish an inability to pay must also submit a 24

25 1 In cases filed before December 1, 2023, civil litigants were required to pay an 26 administrative fee of $52 in addition to the $350 filing fee. See 28 U.S.C. § 1914(a) 27 (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2021)). The additional $52 administrative fee does not apply to persons granted 28 1 “certified copy of the [prisoner’s] trust fund account statement (or institutional equivalent) 2 for . . . the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. 3 § 1915(a)(2). From the certified trust account statement, the Court assesses an initial 4 payment of 20% of (a) the average monthly deposits in the account for the past six months, 5 or (b) the average monthly balance in the account for the past six months, whichever is 6 greater, unless the prisoner has no assets. See 28 U.S.C. §§ 1915(b)(1) & (4). Prisoners 7 who proceed IFP must repay the $350 statutory fee in installments regardless of whether 8 their action is ultimately dismissed. 28 U.S.C. § 1915(b)(2); Bruce v. Samuels, 577 U.S. 9 82, 84 (2016). 10 With his motion, Gonzales provided a copy of his prison certificate and trust account 11 statement. (ECF 2, at 4–5.) During the six months before filing suit, Gonzales had an 12 average monthly balance of $4.65, average monthly deposits of $6.05, and an available 13 account balance of $16.46 at the time he filed suit. (Id. at 4.) Gonzales has established an 14 inability to pay the required $350 filing fee, and the Court grants his IFP motion. While the 15 Court assesses no initial payment, Gonzales must pay the full $350 filing fee in installments 16 as set forth in 28 U.S.C. § 1915(b)(2). 17 SCREENING 18 A. Legal Standards 19 The Court must screen Gonzales’s complaint and dismiss it to the extent that it is 20 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 21 immune. See 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). “The standard for determining 22 whether Plaintiff has failed to state a claim upon which relief can be granted under 23 § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for 24 failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). That is, a 25 complaint must “contain sufficient factual matter . . . to state a claim to relief that is 26 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks 27 omitted). 28 1 B. Gonzales’s Allegations 2 Gonzales sets forth detailed allegations about how, in different incidents, prison 3 officials were deliberately indifferent to his medical needs and used excessive force against 4 him. Specifically, Gonzales explains that he was given gabapentin to control seizures and 5 pain resulting from a gunshot wound to his head. (ECF 1, at 5.) Hoping to gain entry to a 6 “substance abuse group” (a parole-board requirement), Gonzales asked defendant 7 Dr. Sedighi to prescribe him suboxone. (Id. at 8.) Sedighi said he could only prescribe 8 suboxone if Gonzales turned in a “dirty drug test.” (Id.) Sedighi assured Gonzales he would 9 not discontinue Gonzales’s pain medication if he did so, but when Gonzales turned in the 10 “dirty” test, Sedighi stopped Gonzales’s gabapentin. (Id.) When Gonzales protested, 11 Sedighi purportedly said that he did not care if discontinuing that medication put 12 Gonzales’s “life at risk” or if he “suffered permanent injury” as a result. (Id. at 6.) Sedighi 13 also allegedly said “he did not care if [Gonzales] died” “and that hopefully [he would] die 14 while having a seizure.” (Id. at 7.) Sedighi refused to prescribe any other pain medication 15 for Gonzales and told him that he would be serving his “life term in severe pain.” (Id.) 16 In a separate event, Gonzales went to the prison medical clinic where he told an 17 unidentified nurse—with his lips still bleeding from “a prior seizure”—that he was having 18 “symptoms of a possible seizure occurring” and needed to see a doctor. (ECF 1, at 9.) The 19 nurse summoned defendant Officer Ramos, who was assigned as “security for medical 20 staff,” and Gonzales repeated his plea. (Id. at 9, 11.) Ramos in turn relayed the story to 21 defendant Nurse Varajas. (Id. at 9.) Rather than examine Gonzales, Nurse Varajas told 22 Ramos to have Gonzales return to his housing unit and come back the next day. (Id.) On 23 the way back to his cell, Gonzales collapsed from a seizure, hit his head on the pavement, 24 and injured his neck. (Id.) 25 The next day, while inside his cell, Gonzales began yelling “Man down!” “for about 26 10 minutes” because he was again having symptoms of a possible seizure. (ECF 1, 27 at 11–12.) Defendant Officer Costa yelled “Shut up!” at Gonzales. (Id. at 12.) Later, Costa 28 1 found Gonzales unresponsive and called for medical assistance. (Id.) Gonzales claims he 2 had suffered a seizure, collapsed, and hit his head on the sink. (Id.) 3 Some days later, defendant Officer Kies was escorting Gonzales to the Triage 4 Treatment Area when Gonzales had a seizure. (ECF 1, at 12–13.) Kies did not call for 5 medical assistance and instead waited until the seizure passed before continuing to escort 6 Gonzales. (Id. at 13.) Gonzales then had a second seizure, and Kies again waited until the 7 seizure passed before resuming their journey. (Id.) 8 Finally, on yet another day, Gonzales again began yelling “Man down!” in his cell. 9 (ECF 1, at 13.) Defendant Officers Juarez and Sanderson ignored him for an unspecified 10 time before responding. (Id. at 14.) When the officers arrived, Gonzales was having a 11 seizure. (Id.) Juarez punched Gonzales “twice in the chest,” which “could have killed” 12 Gonzales, while Sanderson and another officer stood by. (Id. at 14–15, 18–20.) According 13 to Gonzales, Juarez was “thinking” the punching “would cause [Gonzales] to come out of 14 the seizure.” (Id. at 14.) 15 C. Discussion 16 1. Deliberate Indifference 17 Gonzales alleges that defendants violated his Eighth Amendment rights through their 18 deliberate indifference to his serious medical needs. To state such a claim, an inmate must 19 sufficiently allege: (1) “the existence of a serious medical need” and (2) the prison 20 official’s “deliberate indifference” to that need. Colwell v. Bannister, 763 F.3d 1060, 1066 21 (9th Cir. 2014). Officials are deliberately indifferent when they “know[] of and disregard[] 22 an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 23 “[T]he official must both be aware of facts from which the inference could be drawn that 24 a substantial risk of serious harm exists, and he must also draw the inference.” Id. 25 For deliberate indifference based on mere delay of treatment, “the prisoner must show that 26 the delay caused ‘significant harm and that defendants should have known this to be the 27 case.’” Lewis v. Velasquez-Miranda, No. 1:21-cv-00188-SAB (PC), 2021 WL 9409778, 28 1 at *4 (E.D. Cal. Apr. 12, 2021) (quoting Hallett v. Morgan, 296 F.3d 732, 745–46 (9th Cir. 2 2002)). 3 a. Dr. Sedighi 4 Gonzales has stated an Eighth Amendment claim against defendant Dr. Sedighi. 5 Gonzales says that Sedighi knew gabapentin alleviated his seizures as well as the 6 continuing pain resulting from a past gunshot wound to his head. (ECF 1, at 5.) Objectively, 7 Gonzales’s condition was sufficiently “serious,” since failing to treat it could result in both 8 “significant injury” and “the unnecessary and wanton infliction of pain.” See Peralta, 9 744 F.3d at 1086. As for the deliberate-indifference requirement, Sedighi allegedly told 10 Gonzales he did not care if Gonzales “died” or “injured [him]self” from the seizures and 11 nerve impairment and that he would be “doing this life term in severe pain.” (ECF 1, at 7.) 12 According to the complaint, Sedighi knew that other pain relievers such as Tylenol or 13 nonsteroidal anti-inflammatory medications would not relieve Gonzales’s pain because it 14 stemmed from “nerve damage.” (Id.) Despite this knowledge, Sedighi stopped the 15 gabapentin prescription and said “he [would] not prescribe any nerve damage pain 16 medication.” (Id. (emphasis added).) These allegations plausibly suggest that Sedighi knew 17 of an excessive risk to Gonzales’s health and safety and chose to disregard it. See Fowler 18 v. Daniels, No. 2:22-cv-00195-MMD-CLB, 2022 WL 20622505, at *4 (D. Nev. July 15, 19 2022) (concluding that doctor’s abrupt withdrawal “without any precipitating event” of 20 gabapentin, which had “proved highly effective at treating” plaintiff’s seizures and pain, 21 stated a claim “for deliberate indifference to serious medical needs”); Gray v. Khoo, 22 No. 1:20-cv-01407-DAD-SAB (PC), 2021 WL 38182, at *9–10 (E.D. Cal. 2021) (finding 23 allegations that doctor “discontinued Gabapentin with no systemic replacement” and 24 “denied all pain management” sufficient to state an Eighth Amendment claim), report and 25 recommendation adopted in part, No. 1:20-cv-01047-DAD-SAB (PC), 2021 WL 532358 26 (Feb. 21, 2021). 27 28 1 b. Costa 2 Gonzales has also sufficiently alleged that Officer Costa violated his 3 Eighth Amendment rights based on Costa’s alleged delay in summoning medical 4 assistance. To make out such a theory, “the prisoner must show that the delay led to further 5 harm.” Goldyn v. Angelone, No. 97-17185, 1999 WL 728561, at *1 (9th Cir. Sept. 13, 6 1999); see also Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 7 (9th Cir. 1985) (per curiam) (holding that when “mere delay” is alleged, there is “no claim 8 for deliberate medical indifference unless the denial was harmful”). 9 Gonzales yelled “Man down!” from his cell “for about 10 minutes” because he had 10 “symptoms of a possible seizure occurring.” (ECF 1, at 12.) Instead of responding to this 11 possible medical emergency, Costa told Gonzales to “shut up” and ignored him. (Id.) While 12 failing to “immediately respond to a ‘man down’ call alone is insufficient to state a 13 plausible claim of deliberate indifference,” Turley v. Lezano, No. 3:22-cv-1719-GPC- 14 DDL, 2023 WL 2705841, at *3 (S.D. Cal. Mar. 28, 2023), the 10-minute delay here 15 plausibly led to further harm. That is, Gonzales subsequently suffered a seizure, collapsed, 16 and hit his head on the sink. (ECF 1, at 12.) Costa later discovered Gonzales unresponsive 17 in his cell and only then called for medical help. (Id.) These allegations sufficiently 18 establish that Costa knew of and “disregard[ed] an excessive risk to [Gonzales’s] health or 19 safety,” see Farmer, 511 U.S. at 834, and Costa’s failure to summon medical assistance 20 plausibly resulted in “further harm” when Gonzales later seized and struck his head on the 21 sink, see Goldyn, 1999 WL 728561, at *1. 22 c. Kies 23 Gonzales states a claim against officer Kies. While Kies was escorting him to the 24 Triage Treatment Area, Gonzales had a seizure. (ECF 1, at 13.) Rather than call for “an 25 Emergency Transport Vehicle,” which Gonzales claims “is the normal procedure when an 26 inmate has a medical emergency,” Kies waited until the seizure was over and then merely 27 resumed his “medical escort.” (Id.) Gonzales alleges that Kies’s “forc[ing] him to walk the 28 rest of the way” caused him “to have a second seizure.” (Id.) Even after witnessing the 1 second episode, Kies made him “continue to walk” rather than summoning transport. (Id.) 2 These allegations plausibly demonstrate that Kies knew Gonzales had “serious medical 3 needs” that “could result in further significant injury” or “the unnecessary and wanton 4 infliction of pain”—but that he disregarded this “excessive risk to inmate health” in a 5 display of deliberate indifference. Colwell, 763 F.3d at 1066. 6 d. Varajas and Ramos 7 Gonzales states a claim against both Nurse Varajas and Officer Ramos. According 8 to his complaint, Gonzales “went to the medical clinic” and reported to an unidentified 9 nurse that he “had a prior seizure which is why [his] lips were bleeding,” and requested to 10 see a doctor because he “was having symptoms of a possible seizure.” (ECF 1, at 9.) The 11 nurse summoned Officer Ramos, who was on scene “as security for medical staff” and to 12 whom Gonzales repeated his request. (Id. at 9, 11.) Ramos in turn “went inside the clinic 13 and communicated this to Nurse Varajas.” (Id. at 9.) When Ramos finally returned, he 14 relayed to Gonzales that the nurse said “to send [plaintiff] back to [his] cell/housing unit 15 and come back tomorrow.” (Id.) On his way back to his cell, Gonzales had a seizure that 16 caused him to “hit [his] head on the pavement” and injure his neck. (Id.) 17 Nurse Varajas’s purported refusal to respond to Gonzales’s reported symptoms of 18 an oncoming seizure—or even to investigate his claims with a brief examination—supports 19 a deliberate-indifference claim. As a trained professional, Varajas plausibly drew “the 20 inference” “that a substantial risk of serious harm” existed, but disregarded it and delayed 21 his treatment. See Farmer, 511 U.S. at 834. Gonzales’s subsequent injuries, sustained 22 during the ensuing seizure, constitute the requisite further harm. 23 With Officer Ramos, the case is less clear-cut. Gonzales, with his lips still bleeding 24 from “a prior seizure,” told Ramos that he “was having symptoms of a possible seizure” 25 and needed “to see the doctor.” (ECF 1, at 9.) Ramos “went inside the clinic and 26 communicated this to Nurse Varajas.” (Id.) Apparently without ever leaving the clinic to 27 examine Gonzales, Nurse Varajas allegedly directed that he be sent away without any 28 treatment. (Id.) A factfinder could plausibly conclude that Ramos failed to object to this 1 cursory dismissal, failed to insist that some health-care professional examine the patient in 2 person, and failed to ensure that Gonzales “received at least facially adequate medical 3 care.” See Austin v. Cnty. of Alameda, No. C-15-0942 EMC, 2015 WL 3833239, at *7 4 (N.D. Cal. June 19, 2015). It is plausible that Ramos—viewing Gonzales’s bloodied lips 5 and hearing his request for help—understood that “failure to treat [the] condition could 6 result in further significant injury.” See Peralta, 744 F.3d at 1086. 7 “Prison officials who are not trained medical professionals are entitled to rely on the 8 treatment chosen by the prison doctors, unless the inadequacy of the treatment is obvious 9 to a lay person.” Pabon v. Ryan, No. 05-cv-0283-LAB-CAB, 2007 WL 2404294, at *10 10 (S.D. Cal. Aug. 19, 2007) (emphasis added). Put another way, non-medical personnel may 11 rely on the medical opinions of health-care professionals unless “they have a reason to 12 believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not 13 treating) a prisoner.” McGee v. Adams, 721 F.3d 474, 483 (7th Cir. 2013) (cleaned up). It 14 is plausible that a lay person, seeing Gonzales’s physical state and hearing his warning of 15 another impending seizure, would find that summarily sending him away without even an 16 examination constituted an inadequate medical response. Viewing these allegations in the 17 light most favorable to plaintiff, Gonzales states deliberate indifference against Ramos. 18 e. Juarez and Sanderson 19 Gonzales states deliberate-indifference claims against both Juarez and Sanderson. 20 The officers allegedly “ignored” Gonzales’s calls of “man down” “even after [he] told them 21 [he was] having a seizure.” (ECF 1, at 13–14.) Confusingly, Gonzales alleges that at the 22 very same moment—June 21, 2022, at about 17:40 hours—the guards both “failed to come 23 assist” him and one of them (Juarez) responded to his pleas by punching him in the chest, 24 “thinking this would cause [him] to come out of the seizure.” (See id.) But even assuming 25 there was some initial delay, no facts are alleged that indicate any “delay led to further 26 harm.” Goldyn, 1999 WL 728561, at *1. 27 Trying a more promising tack, Gonzales claims Juarez also “was deliberately 28 indifferent to a serious medical need because” Juarez “punched [him] twice in the chest” 1 while Gonzales was seizing, which “could have killed” him. (ECF 1, at 14.) Inadequate 2 medical treatment rising to the level of an Eighth Amendment violation need not consist 3 solely of a “failure to respond,” but also may be found in “a purposeful act,” as long as 4 there is also “harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 5 (9th Cir. 2006). Juarez, aware that Gonzales was seizing, punched him twice in the chest 6 rather than summon proper medical assistance. (ECF 1, at 14.) Whatever Juarez may have 7 been thinking, this was clearly an improper course of action that suggests an intentional 8 indifference to the medical emergency Gonzales was experiencing. “[T]he more serious 9 the medical needs of the prisoner, and the more unwarranted the defendant’s actions in 10 light of those needs, the more likely it is that a plaintiff has established ‘deliberate 11 indifference’ on the part of the defendant.” McGuckin v. Smith, 974 F.2d 1050, 1061 12 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 13 (9th Cir. 1997). 14 Bystander Sanderson was also deliberately indifferent because, despite observing 15 the helpless and seizing Gonzales, he “just stood there and did nothing.” (ECF 1, at 15.) 16 Over and above the seizure itself, Sanderson witnessed a fellow officer punching an 17 incapacitated inmate, cracking the inmate’s ribs and compounding his already acute 18 medical distress. Gonzales exhibited “serious medical needs” that could lead to his 19 “significant injury,” yet Sanderson allegedly stood idly by and disregarded an “excessive 20 risk to inmate health.” See Colwell, 763 F.3d at 1066. 21 f. Madden, Roberts, and Gates 22 Gonzales fails to state a claim against three supervisors: Warden Madden, Chief 23 Medical Executive Roberts, and Chief of Inmate Health Care Appeals Gates. (See ECF 1, 24 at 2.) To state a § 1983 claim, a plaintiff must allege how “each Government-official 25 defendant, through the official’s own individual actions” violated his constitutional rights. 26 See Iqbal, 556 U.S. at 676–77. A supervisor may be liable under § 1983 “if there exists 27 either (1) his or her personal involvement in the constitutional deprivation, or (2) a 28 sufficient causal connection between the supervisor’s wrongful conduct and the 1 constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). Yet Gonzales 2 makes only broad and conclusory allegations about defendants “not properly training 3 [their] employees.” (See ECF 1, at 15–16.) There are no specific factual allegations about 4 what any of these defendants did or failed to do that violated his constitutional rights or the 5 role any played in his medical care. Gonzales thus fails to state a plausible claim for § 1983 6 relief as to these supervisors. 7 2. Excessive Force 8 The “unnecessary and wanton infliction of pain” by prison officials applying 9 “excessive physical force” can violate the Eighth Amendment. Hudson v. McMillian, 10 503 U.S. 1, 5–7 (1992). “[T]he core judicial inquiry is . . . whether force was applied in a 11 good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause 12 harm.” Id. at 7. 13 According to the complaint, Officer Juarez used unconstitutionally excessive force 14 when he punched Gonzales in the chest—“crack[ing]” his ribs—while Gonzales was 15 helpless and having a seizure. (ECF 1, at 18.) As alleged, a factfinder could plausibly find 16 that bludgeoning an inmate during his seizure was not a good-faith attempt to restore order 17 and instead was done maliciously and sadistically to cause harm. Of course, Gonzales 18 alleges that Officer Juarez was “thinking” the punching would somehow cure the seizure. 19 (See id. at 14.) It is not clear what Gonzales’s basis of knowledge would be for Juarez’s 20 state of mind. Even assuming Juarez told Gonzales that he cracked his ribs in order to aid 21 him somehow, a factfinder could plausibly find that this excuse defied credulity. At the 22 pleading stage, then, Gonzales has alleged an Eighth Amendment excessive-force violation 23 against Juarez. 24 Gonzales levels the same excessive-force claim against Sanderson and Doe 1, 25 accusing them of having “condoned” the beating. (ECF 1, at 19.) “Officers can be held 26 liable for failing to intercede in situations where excessive force is claimed to be employed 27 by other officers,” Hughes, 31 F.4th at 1223, so long as they had a “realistic opportunity” 28 to intercede, Cunningham v. Gates, 229 F.3d 1271, 1290 (9th Cir. 2000). Gonzales claims 1 this very thing: “[Sanderson] should [have] told [] Juarez not to punch me again. Instead, 2 [] Juarez punched me in the chest a second time while I was having a seizure while [] 3 Sanderson just stood there and did nothing.” (ECF 1, at 14–15.) Viewed in the light most 4 favorable to Gonzales, his allegations suggest that Doe 1, also present, had enough time to 5 intercede as well. (See id. at 19–20.) Gonzales thus states a claim against both Sanderson 6 and Doe 1 for their failure to intervene in the use of excessive force. 7 D. Leave to Amend 8 “A district court should not dismiss a pro se complaint without leave to amend unless 9 it is absolutely clear that the deficiencies of the complaint could not be cured by 10 amendment.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (quotation marks 11 omitted). If Gonzales desires, he may amend his complaint to correct the deficiencies 12 identified in this order. 13 OTHER MOTIONS 14 Gonzales moves to have his “correct last name” “be the name documented in the 15 case file” because it was initially misspelled on the docket as “Gonsales.” (See ECF 4.) The 16 motion is denied as moot because Gonzales’s name is now correctly spelled on the Court’s 17 docket. But the Court grants Gonzales’s motion for leave to file excess pages beyond the 18 22-page limit specified by General Order 653. (See ECF 5.) 19 CONCLUSION 20 Accordingly, the Court: 21 1. GRANTS Gonzales’s motion to proceed IFP. 22 2. DIRECTS the Secretary of the CDCR, or that official’s designee, to collect 23 from plaintiff’s trust account the $350 filing fee owed in this case by garnishing monthly 24 payments from his account in an amount equal to 20 percent of the preceding month’s 25 income and forwarding those payments to the Clerk of the Court each time the amount in 26 plaintiff’s account exceeds $10. All payments must be clearly identified by the name and 27 number assigned to this action. 28 1 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 2 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001. 3 4. DENIES AS MOOT Gonzales’s motion to correct name (ECF 4) and 4 DIRECTS the Clerk to mail Gonzales a copy of the docket. 5 5. GRANTS Gonzales’s motion for leave to file excess pages (ECF 5). 6 6. DISMISSES WITHOUT PREJUDICE (and with leave to amend) 7 Gonzales’s Eighth Amendment deliberate-indifference claims against defendants Madden, 8 Gates, and Roberts for failing to state a claim upon which relief may be granted. See 9 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). 10 7. GRANTS Gonzales until October 15, 2024, to either: (a) file a Notice of 11 Intent to Proceed with his claims against defendants Sedighi, Costa, Kies, Varajas, Ramos, 12 Juarez, Sanderson, and Doe 1 only; or (b) file an amended complaint that attempts to correct 13 the deficiencies noted in this order. 14 If Gonzales timely files a Notice of Intent to Proceed, the Clerk will issue an order 15 directing the U.S. Marshal to effect service of the complaint on defendants Sedighi, Costa, 16 Kies, Varajas, Ramos, Juarez, Sanderson, and (if identified) Doe 1. 17 If Gonzales instead timely files an amended complaint, that new complaint must be 18 complete in itself without referring to any previous version. See CivLR 15.1; Lacey v. 19 Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave 20 to amend that are not re-alleged in an amended pleading may be “considered waived if not 21 repled”). It must be entitled “First Amended Complaint,” contain “S.D. Cal. Civil Case 22 No. 23-cv-02181-AGS-BJC” in its caption, and comply with Federal Rule of Civil 23 Procedure 8 and Southern District of California Civil Local Rules 8.2(a) and 15.1(a). 24 If Gonzales chooses to do neither by October 15, 2024, the Court may enter a final 25 order dismissing this case, based both on his failure to state a claim and his failure to 26 prosecute in compliance with a court order requiring amendment. “If a plaintiff does not 27 take advantage of the opportunity to fix his complaint, a district court may convert the 28 1 || dismissal of the complaint into dismissal of the entire action.” Lira v. Herrera, 427 F.3d 2 1164, 1169 (9th Cir. 2005). 3 Dated: August 16, 2024

5 Andrew G. Schopler United States District Judge

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