Kenneth Edward Tan v. Yuba County Jail, et al.

• Court: District Court, E.D. California
• Decided: February 12, 2026
• Docket: 2:24-cv-00437
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH EDWARD TAN, No. 2:24-cv-0437-EFB (PC) 12 Plaintiff, 13 v. ORDER AND RECOMMENDATIONS 14 YUBA COUNTY JAIL, et al., 15 Defendants. 16 17 Plaintiff is a county jail inmate proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. Plaintiff filed his complaint on January 31, 2024, and filed exhibits in support of 19 his complaint on April 11, 2024. ECF Nos 1, 11. Upon screening, the court found a potentially 20 cognizable conditions of confinement claim against defendants.1 ECF No. 14. Defendants 21 (except the Doe Nurses) now move to dismiss the complaint for failure to state a claim because 1) 22 it fails to identify which defendants were personally and individually involved in constitutional 23 violation, and 2) it does not state a claim under the Fourteenth Amendment for deliberate 24 indifference to plaintiff’s jail conditions. ECF No. 31. Plaintiff has filed his opposition (ECF No. 25 35), and defendants have replied (ECF No. 37).

26 1 Defendants Kandola, Little, Gillan, and Asouza are correctional sergeants, defendants Gomez, Houston, Marshall, Henry #1, Bronson, Babs, Samra, Chavez, Thomas, Cacho, and 27 Singh are correctional officers, and the Doe Nurses #1-10 are sued their capacities as medical staff. ECF No. 1 at 10-13. 28 1 Also before the court are: (1) plaintiff’s motion for default judgment (ECF No. 33); (2) 2 plaintiff’s motion for limited discovery (ECF Nos. 53, 54); (3) plaintiff’s motion for leave to 3 amend his complaint (ECF No. 38); (4) plaintiff’s motion for court-ordered production of 4 discovery (ECF Nos. 41, 42); (5) plaintiff’s two motions concerning preservation of evidence 5 (ECF No. 40; ECF No. 43); and (6) plaintiff’s motion to order use of registered return receipt 6 mail (ECF No. 45). 7 For the following reasons, the court will deny plaintiff’s motions regarding the conduct 8 and timing of discovery. The remaining motions must be denied, and plaintiff must be allowed 9 leave to file an amended complaint. 10 I. Defendants’ Motion to Dismiss 11 A. Plaintiff’s Allegations 12 The complaint alleges that plaintiff was housed in unsanitary conditions in a cell in the 13 Yuba County Jail’s F-Pod while quarantined with COVID-19 from September 18-29, 2023. ECF 14 No. 1 at 3-20. According to these allegations, there was an open sewage leak that constantly 15 pooled inside and outside the cell, defendants knew of the condition either because it was obvious 16 to persons walking past the cell and/or because plaintiff complained, but defendants ignored his 17 pleas to move. Id. at 3-5, 13, 15-18. 18 B. Legal Standards 19 1. Federal Rule of Civil Procedure 12(b)(6) Standard 20 A complaint may be dismissed for “failure to state a claim upon which relief may be 21 granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a 22 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell 23 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the 24 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 25 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 26 (citing Twombly, 550 U.S. at 556). The plausibility standard is not akin to a “probability 27 requirement,” but it requires more than a sheer possibility that a defendant has acted unlawfully. 28 Iqbal, 556 U.S. at 678. 1 Dismissal under Rule 12(b)(6) may be based on either: (1) lack of a cognizable legal 2 theory, or (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d 3 at 956. Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the 4 claim. Franklin v. Murphy, 745 F.2d 1221, 1228-1229 (9th Cir. 1984). In resolving a Rule 5 12(b)(6) motion to dismiss, the court must construe the complaint in the light most favorable to 6 the plaintiff and accept all well-pleaded factual allegations as true (and any reasonable inference 7 supported by the facts). Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). 8 For purposes of dismissal under Rule 12(b)(6), the court generally considers only 9 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly 10 subject to judicial notice, and construes all well-pleaded material factual allegations in the light 11 most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 12 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) 13 2. Conditions of Confinement Standard 14 To prevail on a clam under § 1983, a plaintiff must demonstrate: (1) the violation of a 15 federal constitutional or statutory right; and (2) that the violation was committed by a person 16 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). An individual defendant 17 is not liable on a civil rights claim unless the facts establish the defendant's personal involvement 18 in the constitutional deprivation or a causal connection between the defendant's wrongful conduct 19 and the alleged constitutional deprivation. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). 20 Plaintiff and defendants appear to agree that plaintiff’s § 1983 conditions of confinement 21 claim arises under the Fourteenth Amendment. ECF No. 1 at 4; ECF No. 31-1 at 4. The court 22 therefore presumes that at the time of the events in question plaintiff was a pretrial detainee who 23 had not already been convicted. Redman v. City of San Diego, 942 F.2d 1435, 1440 n.7 (9th Cir. 24 1991), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994) (“while the 25 Eighth Amendment proscribes cruel and unusual punishment for convicted inmates, the due 26 process clause of the Fourteenth Amendment proscribes any punishment of pretrial detainees”); 27 see also Perez v. Cox, 788 F. App’x 438, 442 (9th Cir. 2019) (recognizing abrogation on other 28 grounds). The elements of a Fourteenth Amendment deliberate indifference claim are: 1 (1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; 2 (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; 3 (3) The defendant did not take reasonable available measures to abate that risk, 4 even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant's conduct 5 obvious; and

6 (4) By not taking such measures, the defendant caused the plaintiff's injuries. 7 Castro v. County of Los Angeles, 833 F.3d 1160, 1071 (9th Cir. 2016).2 8 Extreme deprivations are required to make out a conditions-of-confinement claim, and 9 only those deprivations denying the minimal civilized measures of life's necessities are 10 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillan, 503 11 U.S. 1, 9 (1992). 12 Furthermore, to state a claim under § 1983, the plaintiff must allege an actual connection 13 or link between the actions of the named defendants and the alleged deprivations. See Monell v. 14 Dep't of Soc. Servs., 436 U.S. 658 (1978). “A person ‘subjects’ another to the deprivation of a 15 constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in 16 another's affirmative act, or omits to perform an act which he is legally required to do that causes 17 the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 18 1978). Vague and conclusory allegations concerning the involvement of official personnel in 19 civil rights violations are not sufficient. Ivey v. Bd. Of Regents, 673 F.2d 266, 268 (9th Cir. 20 1982). Rather, the plaintiff must set forth specific facts as to each individual defendant's causal 21 role in the alleged constitutional deprivation. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 22 Supervisory personnel are generally not liable under § 1983 for the actions of their 23 employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“There is no respondeat 24 superior liability under § 1983.”). A supervisor is only liable for the constitutional violations of 25

26 2 This standard differs from that for an Eighth Amendment deliberate indifference claim in that a pretrial detainee need not prove the subjective element that would show the jail official 27 had actual awareness of the level of risk to the detainee’s health and safety. Castro, 833 F.3d 1071; compare Farmer v. Brennan, 511 U.S. 825, 834 (1994) (stating subjective element of 28 Eighth Amendment conditions of confinement deliberate indifference claim). 1 subordinates if the supervisor participated in or directed the violations, or had actual knowledge 2 of the violations and failed to act to prevent them. Id. When a defendant holds a supervisory 3 position, the causal link between him and the claims of constitutional violation must be 4 specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 5 589 F.2d 438, 441 (9th Cir 1978). 6 C. Analysis 7 1. Incorporation By Reference 8 Most of the exhibits that plaintiff filed in support of his complaint are not relevant to his 9 screened-in conditions of confinement claim. The exhibits that are relevant are: (1) his sketches 10 showing his cell, the F-pod, and where the sewage leak was located; and (2) records relating to 11 his grievances about the sewage leak.3 ECF No. 11 at 25-30, 67-80. Defendants do not dispute 12 the accuracy of plaintiff’s sketches, nor the authenticity of these grievance records. See ECF 13 Nos. 31, 31-1. 14 Consideration of documents incorporated by reference in a complaint can be appropriate 15 in certain circumstances. See, e.g., Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled 16 on other grounds, Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Here, 17 plaintiff’s complaint explicitly describes the location of his cell relative to the sewage drain (as 18 depicted in his sketches), and it references his grievances. Also, plaintiff states that he is 19 submitting the exhibits as “evidence” for his claims and that the records of his grievance hearing 20 and appeal “show[] staff clearly recognizes that the sewage was in fact flooding from dates 9-18- 21 23 to 9-29-23” and that officials “recognized [plaintiff’s] mental distress.” ECF No. 11 at 1, 5. 22 Thus, the court finds these documents appropriate for consideration in the analysis of defendant's 23 motion to dismiss. See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) 24 (stating “[w]e have extended the doctrine of incorporation by reference to consider documents in 25 situations where the complaint necessarily relies upon a document or the contents of the

26 3 The remaining exhibits include his grievances about retaliation, legal research and access, issues with sick call and his medication (pill call). ECF No. 11 at 31-66, 81-91. Plaintiff 27 also submits statements and declarations from other jail inmates, which are generally consistent with the allegations of the complaint, but which do not provide any additional information 28 pertinent to the motion to dismiss. Id. at 7-24. 1 document are alleged in a complaint, the document's authenticity is not in question and there are 2 no disputed issues as to the document's relevance.”). 3 The court may disregard allegations contradicted by a complaint's attached exhibits. 4 Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing, 5 Inc., 143 F.3d 1292, 1295-96 (9th Cir. 1998). In this case, the court has not identified any 6 material contradictions between the allegations of the complaint, and the documents in question, 7 and the court finds that the documents provide context for plaintiff’s conditions of confinement 8 claim. 9 2. The Unsanitary Conditions and Their Seriousness 10 Defendants argue that plaintiff has not alleged a sufficiently serious exposure to 11 unsanitary conditions, or of sufficient duration, to show a constitutional violation. ECF No. 31-1 12 at 4-5. They maintain that plaintiff has not alleged “how frequently his cell experienced sewage 13 leakage and if his personal cell experienced sewage leakage or if Plaintiff complains about the 14 smell in F-Pod generally.” Id. at 5. This is not entirely accurate. Viewing plaintiff’s allegations 15 in the light most favorable to him, his complaint does allege that the sewage leak and pooling of 16 sewage inside and outside his cell was “constant” and “obvious” to anyone who walked past. 17 ECF No. 1 at 3-5. According to plaintiff’s sketches of the F-Pod, the sewage drain was 18 positioned immediately in front of his cell and the sketches also appear to show the extent of 19 leakage into his cell. ECF No. 11 at 27, 28. He contends that “every time one of the defendants 20 walked by” they “ignored his plight.” ECF No. 1 at 13. 21 The grievance records that plaintiff also submits appear to indicate that jail officials were 22 making an ongoing effort to correct the leakage. The narrative of his October 19, 2023 grievance 23 appeal hearing contains the following statement: 24 On 09/21/23, you filed a grievance regarding the plumbing in F Pod. You stated that you were unable to shower on 09/20/23 and 09/21/23 and there was sewage 25 seeping into your cell. We were aware of the plumbing issues during that time and were advised by maintenance staff that the blockage was due to multiple inmates 26 in your housing unit intentionally flushing trash and other items down the toilets. In fact, Thrifty Rooter and additional plumbers responded to the jail 13 times for 27 this issue between 09/17/23 and 09/29/23. The issue has now been resolved. 28 1 ECF No. 11 at 67; see also id. at 71 (October 10, 2023 grievance hearing narrative with same 2 information about plumbing repair). The allegations of plaintiff’s complaint do not contradict the 3 cause of the sewage leak as described in the hearing appeal narrative, nor does his complaint 4 contradict that plumbers were summoned on average on a daily basis during the relevant time 5 period to repair the condition. 6 As for the seriousness of the condition that plaintiff alleges, “[t]he circumstances, nature, 7 and duration of a deprivation of [] necessities must be considered in determining whether a 8 constitutional violation has occurred.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). 9 Plaintiff’s submissions indicate that for 12 days defendants kept him in a cell next to a sewage 10 drain that was leaking and repeatedly under repair until the issue was ultimately resolved. 11 Plaintiff’s exposure may not have been continuous over the course of those 12 days, but it is also 12 not possible on this record to conclude that the extent of his exposure was not sufficiently serious 13 to support a conditions-of-confinement claim. 14 Temporary unsanitary conditions may not rise to the level of constitutional violations. 15 Anderson v. County of Kern, 45 F.3d 1310, 1314 (9th Cir. 1995). But severe or prolonged lack of 16 sanitation can support a constitutional violation. Id. An alleged failure to adequately address a 17 clogged and overflowing toilet for a period of several days has been held to sufficiently state a 18 claim for deliberate indifference. Arellano v. Ojeda, No. 16-55222, 660 F. App’x 552 (mem.) 19 (9th Cir. Nov. 23, 2016); see also Sherman v. Gonzalez, No. 1:09-cv-00420-LJO-SKO, 2010 WL 20 2791565, at *6 (E.D. Cal. July 14, 2010) (denying motion to dismiss where correctional officers 21 ran out of the building after sewage from plaintiff’s toilet flooded his cell, leaving him for five 22 hours while he suffered an asthma attack from the smell). Plaintiff has alleged an objectively, 23 sufficiently serious condition to support a conditions-of-confinement claim, based on his 24 allegations of at least intermittent exposure to a flooded sewage drain over a 12-day period. 25 3. Personal Involvement of Defendants 26 Defendants argue that plaintiff does not plead sufficient facts to show that any of the 27 defendants was responsible for “determining if there was an issue with Plaintiff’s cell, moving 28 Plaintiff to a different cell, or had any personal knowledge that an issue exist[ed]” or that plaintiff 1 specifically alerted any of the individual defendants. ECF No. 31-1 at 5. This is only partially 2 correct. Plaintiff’s complaint clearly alleges that the sewage leak was so obvious that staff 3 present in F-Pod must objectively have been aware of it. And the grievance hearing narrative 4 submitted by plaintiff appears to confirm objective awareness in that plumbers were repeatedly 5 summoned to make repairs. 6 But plaintiff’s claim is not based on any alleged failure to adequately maintain or repair 7 the leaking drain. His claim instead focuses on the failure or refusal to move him to another cell 8 away from the drain. See, e.g., ECF No. 1 at 3 (alleging defendants “ignored” plaintiff’s pleas to 9 move). The only allegation that specifically describes an individual defendant’s actions in this 10 regard, refers to defendant Gomez. Id. at 7 (Gomez “lied” about a cell move); id. at 14-15 (non- 11 party officer Ramirez discussed a cell move with Gomez, then conveyed that the move would not 12 happen). The complaint fails to allege whether and which of the defendants (other than Gomez) 13 was personally responsible for failing to move plaintiff away from the leaking drain. See ECF 14 No. 1 at 14-15. The complaint does not allege any specific action or inaction regarding plaintiff’s 15 continued housing near the drain by any of the four sergeants (Kandola, Little, Gillan, and 16 Asouza), or any of the other correctional officers (Houston, Marshall, Henry #1, Bronson, Babs, 17 Samra, Chavez, Thomas, Cacho, and Singh), or any of the Doe Nurses. Even if plaintiff 18 complained to any or all of these individuals about his housing assignment, complaints alone 19 cannot support a claim unless the individual defendant had personal involvement in keeping him 20 housed in that cell during the period that the sewage drain was overflowing. 21 4. Leave To Amend 22 In general, leave to amend is to be freely granted. Fed. R. Civ. P. 15(a). The court will 23 permit plaintiff another opportunity to state his conditions of confinement claim against the 24 remaining defendants (other than Gomez). Any amended complaint must not attempt to re-allege 25 claims that the court has already screened out, because plaintiff has already elected to proceed on 26 the basis of his conditions-of-confinement claim. ECF No. 14; ECF No. 17. 27 Plaintiff is also cautioned that any amended complaint must identify as a defendant only 28 persons who personally participated in a substantial way in depriving him of his constitutional 1 rights. Johnson, 588 F.2d at 743 (a person subjects another to the deprivation of a constitutional 2 right if he does an act, participates in another's act or omits to perform an act he is legally 3 required to do that causes the alleged deprivation). The amended complaint must also contain a 4 caption including the names of all defendants. Fed. R. Civ. P. 10(a). Plaintiff may not change the 5 nature of this suit by alleging new, unrelated claims. See George v. Smith, 507 F.3d 605, 607 (7th 6 Cir. 2007). Nor may he bring unrelated claims against multiple defendants. Id. 7 Any amended complaint must be written or typed so that it so that it is complete in itself 8 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 9 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 10 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 11 F.3d 1467, 1474 (9th Cir. 1997) (the “ ‘amended complaint supersedes the original, the latter 12 being treated thereafter as non-existent.’ ”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 13 1967)). 14 II. Other Motions 15 A. Plaintiff’s Motion For Default Judgment (ECF No. 33) 16 Plaintiff has moved for default judgment on the grounds that defendants were tardy in 17 filing their motion to dismiss. ECF No. 33. Plaintiff maintains that defendants were served with 18 process on March 18, 2025, but did not file any responsive pleading until they filed their motion 19 to dismiss on May 19, 2025. Id. He argues that their responsive motion was filed tardy according 20 to Federal Rule of Civil Procedure 12(a)(1)(A)(ii), which requires response to a complaint within 21 60 days after the request for a waiver was sent. 22 Defendants’ motion was not filed tardy. Sixty days from March 18, 2025 fell on Saturday 23 May 17, 2025. If the last day of an allowed time for response falls on a Saturday, Sunday, or 24 holiday, then the period continues to run until the next day that is not a Saturday, Sunday, or 25 holiday, which in this instance was Monday, May 19. Fed. R. Civ. P. 6(a)(1)(C). Defendants’ 26 motion was timely filed and plaintiff’s motion for default judgment must be denied. 27 //// 28 //// 1 B. Plaintiff’s Motion for Limited Early Discovery (ECF No. 53) 2 Plaintiff has moved for “limited, early discovery for the purpose of identifying the Doe 3 defendants who participated in the constitutional violations alleged in the complaint.” ECF No. 4 53 at 1. Defendants oppose the motion as premature. ECF No. 54. Early discovery “is an 5 extraordinary form of relief.” Bell v. Hawx Services, LLC, No. 2:24-cv-0825-DC-DMC, 2025 6 WL 3677347, at *2 (E.D. Cal. Dec. 18, 2025) (citations omitted). “[I]t is implicit that some 7 showing of good cause should be made to justify such an order.” 8A Wright & Miller’s Federal 8 Practice & Procedure § 2046.1 (3d. ed. 2010). Early discovery is most likely to be granted on 9 specific, limited topics. Snow Covered Capital, LLC v. Weidner, No. 2:19-cv-00595-JAD-NJK, 10 2019 WL 2648799, at *2 (D. Nev. June 26, 2019) (citing Wright & Miller § 2046.1 (2019 supp.)) 11 The only Doe defendants are the Doe Nurses #1-10. The complaint does not allege any 12 specific role the Doe Nurses may have played in the alleged failure to move plaintiff away from 13 the sewage leak; alleged complaints he may have made to them are insufficient to allege their 14 personal involvement in his housing assignment. Should plaintiff file an amended complaint that 15 adequately alleges a claim against any of the Doe Nurses, seek their identities through the normal 16 course of discovery. 17 Plaintiff’s proposed early discovery is broad-ranging. He asks the court to order 18 defendants to produce “logs, rosters, reports, and documents identifying all personnel (officers 19 and medical staff) involved on the dates and locations relevant to [his] claims.” ECF No. 53 at 3. 20 Also, it appears plaintiff may be proposing to conduct early discovery about claims that were not 21 screened in. See ECF No. 14 at 4-5. As noted, plaintiff was given an opportunity whether to 22 proceed with his cognizable conditions-of-confinement claim or to file an amended complaint, 23 and he elected to proceed without amending his complaint. See id. at 9; ECF No. 17. 24 To the extent that plaintiff’s motion also requests leave to file an amended and 25 supplemental complaint after he receives early discovery, this request must also be denied. 26 Plaintiff must be given another opportunity to amend his complaint as to his conditions-of- 27 confinement claim, but plaintiff has not shown good cause to conduct early discovery before 28 filing an amended complaint, and he may not use an amended (or “supplemental”) complaint to 1 revive claims that he has already abandoned. 2 C. Plaintiff’s Motion for Leave To Amend His Complaint (ECF No. 38) 3 Plaintiff has separately moved for leave to amend his complaint “after receiving discovery 4 in order to plead more specific facts regarding each defendants’ individual involvement in the 5 alleged unconstitutional condition of confinement.” ECF No. 38 at 1. For the reasons discussed 6 above, plaintiff’s motion for limited early discovery is denied. Plaintiff is granted leave to amend 7 his complaint to state an actionable conditions-of-confinement claim against the individual 8 defendants (other than Gomez), but he may not re-allege claims that he has already elected not to 9 proceed with after they were screened out of the case, and he will not be permitted to conduct 10 discovery before filing an amended complaint. The case will proceed according to the usual 11 sequence of 1) (amended) complaint, 2) answer, 3) scheduling order, and 4) discovery, motions 12 practice, and trial if necessary. 13 For these reasons, plaintiff’s motion for leave to amend the complaint must be granted in 14 part insofar as allowing him to amend his conditions of confinement claim, and otherwise denied 15 insofar as it requests leave to conduct discovery before filing an amended complaint. Should 16 plaintiff wish to amend the complaint after conducting discovery, he must file a motion for leave 17 to amend at that time. 18 D. Plaintiff’s Motion for Court-Ordered Production Of Discovery (ECF No. 41) 19 Plaintiff has filed a separate motion seeking “all discovery necessary to prosecute 20 plaintiff’s claims – including, but not limited to: interrogatories, requests for production 21 (document and ESI), depositions, records and logs, and communications – without cost to 22 plaintiff, or in the alternative for appropriate cost-shifting to defendants.” ECF No. 41 at 1. 23 Defendants respond that discovery attempts are premature, the court has not issued any 24 scheduling orders, plaintiff has not propounded any discovery requests, and the parties have not 25 met and conferred as provided in Rule 26(f). ECF No. 42 at 2-3. 26 Discovery is premature at this time, for the reasons discussed above. Plaintiff shall have 27 the opportunity to amend his complaint, and thereafter a schedule governing discovery will issue 28 following the filing of defendants’ answer. At that juncture, plaintiff may propound his discovery 1 requests according to the methods provided in the Rules of Civil Procedure. 2 E. Plaintiff’s Motions Concerning Preservation of Evidence (ECF No. 40, ECF No. 43) 3 Plaintiff asks the court to order preservation of various items/categories of evidence 4 relevant to the instant case. ECF No. 40. Because the court has identified a potential claim, the 5 parties have a duty to preserve evidence that they “know or reasonably should know is relevant to 6 the action.” In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1067 (N.D. Cal. 2006) 7 (internal citations omitted). A court order is not necessary to trigger this duty, but plaintiff may 8 notify defendants of this order and request that they preserve evidence accordingly. Should 9 plaintiff discover that relevant evidence has been destroyed, he may seek appropriate sanctions. 10 See Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006). 11 Plaintiff also seeks an order from the court to address his concerns that his evidence and 12 other papers concerning the case were confiscated at booking upon plaintiff’s re-incarceration in 13 the jail after a period of homelessness. ECF No. 43. Plaintiff asked Officer Gillan – who is a 14 defendant in this action – about the legal property during a booking interview, and Gillan 15 informed plaintiff that he would receive it after drug-sniffing dogs checked it. Id. Plaintiff 16 expresses concern that a defendant in this action has access to his case files. Id. Plaintiff presents 17 no argument or evidence that he has been deprived of his legal materials since his processing 18 back into the jail or that any defendant has improperly handled plaintiff’s materials. Accordingly, 19 no order addressing the situation appears necessary at this time. If plaintiff has not been provided 20 his legal materials since the filing of the motion, or has some indication that the materials have 21 been improperly handled or viewed by any defendant, he may file another motion seeking relief. 22 F. Plaintiff’s Motion to Order Use of Registered Mail (ECF No. 45) 23 Plaintiff also seeks an order requiring defendants to use registered mail in their 24 communications with him, because plaintiff has “lost trust” in defendants due to their 25 “dishonorable” conduct towards him. ECF No. 45. Absent any indication that plaintiff’s mail 26 has been withheld from him, the court finds such an order unnecessary. 27 //// 28 //// 1 ORDER AND RECOMMENDATIONS 2 For the foregoing reasons, it is hereby ORDERED that: 3 1. Plaintiff’s motion for limited early discovery (ECF No. 53) is DENIED; 4 2. Plaintiff’s motion for court-ordered production of discovery (ECF No. 41) is 5 DENIED; and 6 3. The Clerk of Court randomly assign a district judge to this action. 7 It is further RECOMMENDED that: 8 1. Defendants’ motion to dismiss (ECF No. 31) be DENIED IN PART because the 9 complaint adequately alleges a condition-of-confinement claim against defendant 10 Gomez; 11 2. The motion to dismiss be GRANTED IN PART as to the remaining defendants 12 (Kandola, Little, Gillan, Asouza, Houston, Marshall, Henry #1, Bronson, Babs, Samra, 13 Thomas, Singh, Chavez, Cacho, and Nurses #1-10); 14 3. Plaintiff be given an opportunity to amend his complaint to state potentially 15 cognizable conditions-of-confinement claims against the remaining defendants 16 (Kandola, Little, Gillan, Asouza, Houston, Marshall, Henry #1, Bronson, Babs, Samra, 17 Thomas, Singh, Chavez, Cacho, and Nurses #1-10) for housing plaintiff in a cell with 18 a sewage leak (or for ignoring the need to moved plaintiff from the cell) between 19 September 18, 2023 and September 29, 2023; and 20 4. Plaintiff’s motion for default judgment (ECF No. 33) be DENIED; 21 5. Plaintiff’s motion for leave to amend his complaint (ECF No. 38) be GRANTED IN 22 PART insofar as allowing him to amend his conditions of confinement claim, and 23 DENIED IN PART insofar as allowing plaintiff leave to conduct discovery before 24 filing an amended complaint or to reallege previously screened-out claims. 25 6. Plaintiff’s motions concerning the preservation of evidence (ECF No. 40, ECF No. 43) 26 be DENIED; 27 7. Plaintiff’s motion requiring defendants to use registered mail (ECF No. 45) be 28 DENIED. 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 3 after being served with these findings and recommendations, any party may file written 4 objections with the court and serve a copy on all parties. Such a document should be captioned 5 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 6 objections shall be served and filed within fourteen days after service of the objections. The 7 parties are advised that failure to file objections within the specified time may waive the right to 8 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 9 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 DATED: February 12, 2026

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