Michael Allen Soto v. Gardena Police Department

• Court: District Court, C.D. California
• Decided: May 10, 2021
• Docket: 2:21-cv-00583
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MICHAEL ALLEN SOTO, Case No. 2:21-cv-00583-RSWL (MAA) 11 12 Plaintiff, MEMORANDUM DECISION AND ORDER DISMISSING COMPLAINT 13 v. WITH LEAVE TO AMEND 14 GARDENA POLICE 15 DEPARTMENT et al., 16 Defendant. 17 18 19 I. INTRODUCTION 20 On January 20, 2021, Plaintiff Michael Allen Soto (“Plaintiff”), who at that 21 time was being held at Los Angeles County Jail, filed a pro se Complaint alleging 22 violations of his civil rights pursuant to 42 U.S.C. § 1983 (“Section 1983”). 23 (Compl., ECF No. 1.) On February 23, 2021, the Court denied Plaintiff’s initial 24 Request to Proceed Without Prepayment of Filing Fees. (ECF Nos. 2, 5.) On April 25 5, 2021, Plaintiff provided notice of his change of address to a location outside of 26 jail. (ECF No. 6.) On April 22, 2021, Plaintiff submitted an amended Request to 27 Proceed Without Prepayment of Filing Fees (ECF No. 8), which the Court granted 28 on April 27, 2021 (ECF No. 9). 1 The Court has screened the Complaint, and dismisses it with leave to amend 2 for the reasons stated below. No later than June 9 2021, Plaintiff must either: 3 (1) file a First Amended Complaint; or (2) advise the Court that Plaintiff no longer 4 intends to pursue this lawsuit. 5 6 II. PLAINTIFF’S ALLEGATIONS AND CLAIMS1 7 The Complaint is filed against: (1) Gardena Police Department; (2) Los 8 Angeles County Jail;2 (3) John Doe3 #1–10, Gardena Police Department patrol 9 officers, in their individual and official capacities; and (4) John Doe #11, Los 10 Angeles County I.R.C. intake nurse (medical), in his or her individual and official 11 capacity (each, a “Defendant,” and collectively, “Defendants”). (Compl. 1, 3–6.)4 12 On September 1, 2020, at around 2000 hours, officers tried to arrest Plaintiff. 13 (Id. at 7.) Plaintiff was afraid and suffers from PTSD, so ran for safety. (Id.) John 14 Doe #1–2 pulled out clubs and attacked Plaintiff’s knees while John Doe #3 15 attacked Plaintiff with his fists and John Doe #4 attempted to shoot Plaintiff with a 16 /// 17

18 1 The Court summarizes Plaintiff’s allegations and claims in the Complaint and attached exhibits, without opining on their veracity or making any findings of fact. 19 See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987) (explaining 20 that documents attached to a complaint are part of the complaint and may be considered in determining whether the plaintiff can prove any set of facts in support 21 of the claim). 22 2 Gardena Police Department and Los Angeles County Jail are named as 23 Defendants in the caption of the Complaint (see Compl. 1), but not listed among the 24 parties in the body of the Complaint (see id. at 3–6). If Plaintiff files an amended 25 complaint, he must ensure consistency between the Defendants listed in the caption and named as parties in the body of the complaint. 26 27 3 Doe is misspelled as “Dough” in the Complaint.

28 4 Citations to pages in docketed documents reference those generated by CM/ECF. 1 taser. (Id.) Plaintiff continued running for safety. (Id.) John Doe #4 further 2 reloaded or John Doe #5 deployed a second taser. (Id.) 3 Plaintiff “gave up chase,” threw his hands in the air, got on the ground, and 4 put his hands behind his back. (Id.) John Doe #1 put his knee on the back of 5 Plaintiff’s neck and pushed Plaintiff’s hands upwards until they caused a thirty 6 percent possible fracture to his right hand. (Id.) John Doe #2–6 pulled out tasers 7 and continued to tase Plaintiff while John Doe #7–8 attacked Plaintiff and said 8 “stop resisting.” (Id.) 9 On September 2, 2020, at or around 0300 hours, John Doe #9 woke Plaintiff 10 up and told him he was taking Plaintiff to the hospital. (Id. at 8.) At Gardena 11 Memorial Hospital, Plaintiff complained of pain in his hands and knees. (Id.) The 12 doctor ordered x-rays on Plaintiff’s right hand, issued him a splint, and prescribed 13 Plaintiff pain medicine and anti-inflammatory in it. (Id.) The nurse came to put the 14 splint on Plaintiff. (Id.) John Doe #9 denied Plaintiff the split and said “we will put 15 it on at the station.” (Id.) John Doe #10 did not object. (Id.) The nurse gave 16 Plaintiff his pain medicine, and John Doe #9–10 took Plaintiff back. (Id.) 17 On September 3, 2020, Plaintiff came to Los Angeles County Jail and was 18 processed through I.R.C. (Id.) When Plaintiff arrived at medical intake, John Doe 19 #11 asked Plaintiff about the x-rays in his file from Gardena Memorial Hospital. 20 (Id.) Plaintiff said that officers John Doe #9–10 denied him the splint that the 21 doctor ordered for his right hand. (Id.) John Doe #11 did not follow up on it, and 22 only focused on Plaintiff’s left hand which had an open wound with an infection, 23 and did not follow up on it either. (Id.) 24 Plaintiff asserts violations of the Eighth Amendment for excessive force and 25 deliberate indifference to medical care. (Id. at 7–8.) Plaintiff seeks declaratory 26 relief; compensatory, punitive, and special damages; costs and attorneys’ fees; and 27 an evidentiary hearing. (Id. at 9.) 28 /// 1 III. LEGAL STANDARD 2 Federal courts must conduct a preliminary screening of any case in which a 3 plaintiff proceeds in forma pauperis. 28 U.S.C. § 1915(e)(2)(B). The court must 4 identify cognizable claims and dismiss any complaint, or any portion thereof, that 5 is: (1) frivolous or malicious, (2) fails to state a claim upon which relief may be 6 granted, or (3) seeks monetary relief from a defendant who is immune from such 7 relief. 28 U.S.C. § 1915(e)(2)(B). 8 When screening a complaint to determine whether it fails to state a claim 9 upon which relief can be granted, courts apply the Federal Rule of Civil Procedure 10 12(b)(6) (“Rule 12(b)(6)”) standard. See Watison v. Carter, 668 F.3d 1108, 1112 11 (9th Cir. 2012). To survive a Rule 12(b)(6) dismissal, “a complaint must contain 12 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 13 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 14 Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the 15 plaintiff pleads factual content that allows the court to draw the reasonable 16 inference that the defendant is liable for the misconduct alleged.” Id. Although 17 “detailed factual allegations” are not required, “an unadorned, the-defendant- 18 unlawfully-harmed-me accusation”; “labels and conclusions”; “naked assertion[s] 19 devoid of further factual enhancement”; and “[t]hreadbare recitals of the elements 20 of a cause of action, supported by mere conclusory statements” do not suffice. Id. 21 “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a 22 cognizable legal theory or sufficient facts to support a cognizable legal theory.” 23 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) 24 (quoting Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 25 2008)). 26 In reviewing a Rule 12(b)(6) motion to dismiss, courts will accept factual 27 allegations as true and view them in the light most favorable to the plaintiff. Park 28 v. Thompson, 851 F.3d 910, 918 (9th Cir. 2017). Moreover, where a plaintiff is 1 appearing pro se, particularly in civil rights cases, courts construe pleadings 2 liberally and afford the plaintiff any benefit of the doubt. Wilhelm v. Rotman, 680 3 F.3d 1113, 1121 (9th Cir. 2012). “If there are two alternative explanations, one 4 advanced by defendant and the other advanced by plaintiff, both of which are 5 plausible, plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6).” 6 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). However, the liberal pleading 7 standard “applies only to a plaintiff’s factual allegations.” Neitzke v. Williams, 490 8 U.S. 319, 330 n.9 (1989), superseded by statute on other grounds, 28 U.S.C. § 9 1915. Courts will not “accept any unreasonable inferences or assume the truth of 10 legal conclusions cast in the form of factual allegations.” Ileto v. Glock Inc., 349 11 F.3d 1191, 1200 (9th Cir. 2003). In giving liberal interpretations to complaints, 12 courts “may not supply essential elements of the claim that were not initially pled.” 13 Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F.3d 939, 954 (9th Cir. 2011) (quoting 14 Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992)). 15 16 IV. DISCUSSION 17 A. Section 1983 18 Section 1983 provides:

19 Every person who, under color of any statute, ordinance, regulation, 20 custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction 21 thereof to the deprivation of any rights, privileges, or immunities 22 secured by the Constitution and laws, shall be liable to the party 23 i njured in an action at law . . . . 24 42 U.S.C. § 1983. “Section 1983 does not create any substantive rights, but is 25 instead a vehicle by which plaintiffs can bring federal constitutional and statutory 26 challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 27 1063, 1067 (9th Cir. 2006). “The purpose of §1983 is to deter state actors from 28 using the badge of their authority to deprive individuals of their federally 1 guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. 2 Cole, 504 U.S. 158, 161 (1992). “To state a claim under § 1983, a plaintiff must 3 allege the violation of a right secured by the Constitution and laws of the United 4 States, and must show that the alleged deprivation was committed by a person 5 acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). 6 Plaintiff asserts violations of the Eighth Amendment for excessive force and 7 deliberate indifference to medical care. (Compl. 7–8.) However, the Eighth 8 Amendment applies only to convicted prisoners, and Plaintiff sues for violations 9 during his arrest and days following his arrest. See Castro v. County of Los 10 Angeles, 833 F.3d 1060, 1067–68 (9th Cir. 2016) (en banc) (“Inmates who sue 11 prison officials for injuries suffered while in custody may do so under the Eighth 12 Amendment’s Cruel and Unusual Punishment Clause or, if not yet convicted, under 13 the Fourteenth Amendment’s Due Process Clause”); Smith v. City of Hemet, 394 14 F.3d 689, 700 (9th Cir. 2005) (“All claims that law enforcement officers have used 15 excessive force —deadly or otherwise—in the course of an arrest must be analyzed 16 under the Fourth Amendment and its ‘reasonableness’ standard.”). Mindful of the 17 liberal pleading standards afforded pro se civil rights plaintiffs, the Court examines 18 Plaintiff’s excessive force claim pursuant to the Fourth Amendment, and Plaintiff’s 19 inadequate medical care claim pursuant to the Fourteenth Amendment. See Sagana 20 v. Tenorio, 384 F.3d 731, 736–37 (9th Cir. 2004) (“A party need not plead specific 21 legal theories in the complaint, so long as the other side receives notice as to what is 22 at issue in the case.”); Ellis v. Brady, Case No. 16cv1419 WQH (NLS), 2017 U.S. 23 Dist. LEXIS 203458, at *15–16 (S.D. Cal. Dec. 8, 2017) (concluding that court 24 could address plaintiff’s claim asserted under the wrong constitutional amendment, 25 as “it is the factual allegations, not the legal labels attached, which determine the 26 issue”). 27 /// 28 /// 1 B. Entity Defendants and Official Capacity Claims 2 A suit against a defendant in his or her individual capacity “seek[s] to impose 3 personal liability upon a government official for actions he takes under color of 4 state law . . . . Official-capacity suits, in contrast, ‘generally represent only another 5 way of pleading an action against an entity of which an officer is an agent.’” 6 Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. Dep’t of Social 7 Servs., 436 U.S. 658, 690 n.55 (1978)). “[A]n official-capacity suit is, in all 8 respects other than name, to be treated as a suit against the entity.” Id. at 166. 9 The Complaint is filed against the Gardena Police Department and ten of its 10 patrol officers in their official capacities (John Doe #1–10), as well as Los Angeles 11 County Jail and one of its intake nurses in their official capacity (John Doe #11). 12 (Compl. 1, 3–6.) As Gardena Police Department is a named Defendant, the claims 13 against John Doe #1–10 in their official capacities are redundant and should be 14 omitted from any amended complaint. See Ctr. for Bio-Ethical Reform, Inc. v. L.A. 15 Cnty. Sheriff Dep’t, 533 F.3d 780, 799 (9th Cir. 2008) (holding that sheriff was a 16 “redundant defendant” in lawsuit against county and county sheriff in his official 17 capacity). Similarly, as Los Angeles County Jail is a named Defendant, the official 18 capacity claim against John Doe #11 is redundant and should be omitted from any 19 amended complaint. See id. 20 “A municipality or other local government may be liable under [Section 21 1983] if the governmental body itself ‘subjects’ a person to a deprivation of rights 22 or ‘causes’ a person ‘to be subjected’ to such deprivation.” Connick v. Thompson, 23 563 U.S. 51, 60 (2011) (citing Monell, 436 U.S. at 692). “A municipality cannot be 24 held liable solely because it employs a tortfeasor—or in other words, a municipality 25 cannot be held liable under Section 1983 on a respondeat superior theory.” Monell, 26 436 U.S. at 690–91. “In order to establish municipal liability, a plaintiff must show 27 that a ‘policy or custom’ led to the plaintiff’s injury.” Castro, 833 F.3d at 1073 28 (quoting Monell, 436 U.S. at 694). “Official municipal policy includes the 1 decisions of a government’s lawmakers, the acts of its policymaking officials, and 2 practices so persistent and widespread as to practically have the force of law.” 3 Connick, 563 U.S. at 61. A rule or regulation “promulgated, adopted, or ratified 4 by a local governmental entity’s legislative body” constitutes a municipal policy. 5 Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989), overruled 6 on other grounds by Bull v. City & County of San Francisco, 595 F.3d 964 (9th Cir. 7 2010) (en banc). “A policy has been defined as ‘a deliberate choice to follow a 8 course of action . . . made from among various alternatives by the official or 9 officials responsible for establishing final policy with respect to the subject matter 10 in question.’” Waggy v. Spokane County Washington, 594 F.3d 707, 713 (9th Cir. 11 2010) (alteration in original) (quoting Long v. County of Los Angeles, 442 F.3d 12 1178, 1185 (9th Cir. 2006)). “[I]n addition to an official policy, a municipality may 13 be sued for constitutional deprivations visited pursuant to governmental custom 14 even though such custom has not received formal approval through the 15 [governmental] body’s official decisionmaking channels.” Navarro v. Block, 72 16 F.3d 712, 714 (9th Cir. 1996) (quotations omitted) (citing Monell, 436 U.S. at 690– 17 91). However, liability for a custom will attach only if a plaintiff pleads that his or 18 her injury resulted from a “permanent and well-settled” practice. Thompson, 885 19 F.2d at 1444. Allegations of random acts or isolated events are insufficient to 20 establish a municipal custom. Navarro, 72 F.3d at 714. Furthermore, there must be 21 a “direct causal link between a municipal policy or custom and the alleged 22 constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). 23 Municipal policy “‘causes’ an injury where it is the ‘moving force’ behind the 24 constitutional violation, or where ‘the [municipality] itself is the wrongdoer.’” 25 Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994) (citations omitted). The 26 municipal policy “need only cause a constitutional violation; it need not be 27 unconstitutional per se.” Jackson v. Gates, 975 F.2d 648, 654 (9th Cir. 1992). 28 /// 1 The Complaint does not identify any specific City of Gardena or Los Angeles 2 County policy or custom that caused Plaintiff’s alleged injuries. Rather, the 3 Complaint alleges a single incident of excessive force against Plaintiff and 4 inadequate medical care for Plaintiff’s injuries resulting from such incident. (See 5 generally Compl.) “A plaintiff cannot prove the existence of a municipal policy or 6 custom based solely on the occurrence of a single incident of unconstitutional 7 action by a non-policymaking employee.” Davis v. City of Ellensburg, 869 F.2d 8 1230, 1233 (9th Cir. 1989); see also Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 9 1996) (“Liability for improper custom may not be predicated on isolated or 10 sporadic incidents.”) Instead, liability must be “founded upon practices of 11 sufficient duration, frequency and consistency that the conduct has become a 12 traditional method of carrying out policy.” Trevino, 99 F.3d at 918. 13 For these reasons, the Complaint fails to state any Section 1983 claims 14 against the Gardena Police Department, Los Angeles County Jail, or John Doe #1– 15 11 in their official capacities. If Plaintiff files an amended complaint with claims 16 against these Defendants, he must correct these deficiencies or risk their dismissal. 17 18 C. Individual Capacity Claims 19 1. Fourth Amendment - Excessive Force 20 Excessive force claims that arise in the context of an arrest or investigatory 21 stop invoke the protections of the Fourth Amendment of the U.S. Constitution, 22 which guarantees citizens the right “to be secure in their persons . . . against 23 unreasonable . . . seizures.” U.S. Const. amend. IV; Graham v. Conor, 490 U.S. 24 386, 394 (1989). “Under the Fourth Amendment, police may use only such force 25 as is objectively reasonable under the circumstances.” LaLonde v. County of 26 Riverside, 204 F.3d 947, 959 (9th Cir. 2000). “[T]he ‘reasonableness’ inquiry in [a] 27 [Fourth Amendment] excessive force case is an objective one: the question is 28 whether the officers’ actions are ‘objectively reasonable’ in light of the facts and 1 circumstances confronting them, without regard to their underlying intent or 2 motivation.” Graham, 490 U.S. at 397; A.K.H. v. City of Tustin, 837 F.3d 1005, 3 1010 (9th Cir. 2016). “The calculus of reasonableness must embody allowance for 4 the fact that police officers are often forced to make split-second judgments—in 5 circumstances that are tense, uncertain, and rapidly evolving—about the amount of 6 force that is necessary in a particular situation.” Graham, 490 U.S. at 396–97. 7 “The ‘reasonableness’ of a particular use of force must be judged from the 8 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 9 hindsight.” Id. at 396. 10 To determine if a Fourth Amendment excessive force violation has occurred, 11 courts “balance the extent of the intrusion on the individual’s Fourth Amendment 12 rights against the government’s interests to determine whether the officer’s conduct 13 was objectively reasonable based on the totality of the circumstances.” Espinoza v. 14 City & County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010). This analysis 15 involves three steps. Id. First, courts “assess the severity of the intrusion on the 16 individual’s Fourth Amendment rights by evaluating ‘the type and amount of force 17 inflicted.’” Glenn v. Washington County, 673 F.3d 864, 871 (9th Cir. 2011) 18 (quoting Espinoza, 598 F.3d at 537). “[E]ven where some force is justified, the 19 amount actually used may be excessive.” Id. (alteration in original) (quoting Santos 20 v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)). Second, courts evaluate the 21 government’s interest in the use of force by assessing three primary factors: “(1) the 22 severity of the crime; (2) whether the suspect posed an immediate threat to the 23 officers’ or public’s safety; and (3) whether the suspect was resisting arrest or 24 attempting to escape.” Espinoza, 598 F.3d at 537; Glenn, 673 F.3d at 872. These 25 factors are not exclusive; other relevant factors include the availability of less 26 intrusive alternatives to the force employed, whether proper warnings were given, 27 and whether it should have been apparent to officers that the individual was 28 emotionally disturbed. Glenn, 673 F.3d at 872. Third, courts “balance the gravity 1 of the intrusion on the individual against the government’s need for that intrusion.” 2 Id. at 871 (quoting Miller v. Clark County, 340 F.3d 959, 964 (9th Cir. 2003)). 3 The Complaint alleges that on September 1, 2020, at around 2000 hours, 4 officers tried to arrest Plaintiff. (Compl. 7.) Plaintiff was afraid and suffers from 5 PTSD, so ran for safety. (Id.) John Doe #1–2 pulled out clubs and attacked 6 Plaintiff’s knees while John Doe #3 attacked Plaintiff with his fists and John Doe 7 #4 attempted to shoot Plaintiff with a taser. (Id.) Plaintiff continued running for 8 safety. (Id.) John Doe #4 further reloaded or John Doe #5 deployed a second taser. 9 (Id.) Plaintiff “gave up chase,” threw his hands in the air, got on the ground, and 10 put his hands behind his back. (Id.) John Doe #1 put his knee on the back of 11 Plaintiff’s neck and pushed Plaintiff’s hands upwards until they caused a thirty 12 percent possible fracture to his right hand. (Id.) John Doe #2–6 pulled out tasers 13 and continued to tase Plaintiff while John Doe #7–8 attacked Plaintiff and said 14 “stop resisting.” (Id.) 15 These allegations are sufficient to warrant a response from John Doe #1–6 to 16 Plaintiff’s Fourth Amendment excessive force claim. They are not, however, 17 sufficient to warrant a response from John Doe #7–8. If Plaintiff files an amended 18 complaint with claims against these defendants, he should correct this deficiency by 19 providing additional factual allegations, including, for example, how they 20 “attacked” Plaintiff, the type and amount of force they used, the amount of time 21 they subjected Plaintiff to force, and whether Plaintiff was resisting arrest, or risk 22 their dismissal. 23 24 2. Fourteenth Amendment – Inadequate Medical Care 25 Claims for violations of the right to adequate medical care brought by pretrial 26 detainees against individual defendants under the Fourteenth Amendment are 27 evaluated under an objective deliberate indifference standard. Gordon v. County of 28 Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018). The elements of such claim are: 1 (i) the defendant made an intentional decision with respect to the 2 conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious 3 harm; (iii) the defendant did not take reasonable available measures to 4 abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the 5 consequences of the defendant’s conduct obvious; and (iv) by not 6 taking such measures, the defendant caused the plaintiff’s injuries. 7 Id. at 1125. “With respect to the third element, the defendant’s conduct must be 8 objectively unreasonable, a test that will necessarily ‘turn[] on the facts and 9 circumstances of each particular case.’” Castro, 833 F.3d at 1071 (quoting 10 Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). “The ‘mere lack of due care 11 by a state official’ does not deprive an individual of life, liberty, or property under 12 the Fourteenth Amendment.” Gordon, 888 F.3d at 1125 (quoting Castro, 833 F.3d 13 at 1071); Daniels v. Williams, 474 U.S. 327, 330–31 (1986) (“[T]he Due Process 14 Clause is simply not implicated by a negligent act of an official causing unintended 15 loss of or injury to life, liberty, or property.”). Thus, the plaintiff must “prove more 16 than negligence but less than subjective intent—something akin to reckless 17 disregard.” Castro, 833 F.3d at 1071. 18 The Complaint alleges that on September 2, 2020, when the nurse came to 19 put a splint on Plaintiff at Gardena Memorial Hospital, John Doe #9 said that they 20 would put the splint on Plaintiff at the station, and John Doe #10 did not object. 21 (Compl. 8.) On September 3, 2020, Plaintiff was taken to Los Angeles County Jail 22 and processed through I.R.C., where John Doe #11 was working at medical intake. 23 (Id.) John Doe #11 asked Plaintiff about the x-rays in his file from Gardena 24 Memorial Hospital, but did not follow up when Plaintiff told him that John Doe #9– 25 10 had denied him a splint, only focused on Plaintiff’s left hand which had an open 26 wound with an infection, and did not follow up on it either. (Id.) 27 These allegations are insufficient to state a Fourteenth Amendment 28 inadequate medical care claim against John Doe #9–11. At most, they allege lack 1 of due care or negligence, which does not violate the Constitution. See Gordon, 2 888 F.3d at 1125; Daniels, 474 U.S. at 330–31. 3 For these reasons, the Complaint fails to state a Fourteenth Amendment 4 inadequate medical care claim against any Defendant. If Plaintiff files an amended 5 complaint with a Fourteenth Amendment inadequate medical care claim, he must 6 correct these deficiencies or risk its dismissal. 7 8 V. CONCLUSION 9 For the reasons stated above, the Court DISMISSES the Complaint WITH 10 LEAVE TO AMEND. Plaintiff may have an opportunity to amend and cure the 11 deficiencies in light of his pro se prisoner status. Plaintiff is ORDERED to, no 12 later than June 9, 2021, either: (1) file a First Amended Complaint (“FAC”), or 13 (2) advise the Court that Plaintiff no longer intends to pursue this lawsuit. 14 The FAC must cure the pleading defects discussed above and shall be 15 complete in itself without reference to the Complaint. See L.R. 15-2 (“Every 16 amended pleading filed as a matter of right or allowed by order of the Court shall be 17 complete including exhibits. The amended pleading shall not refer to the prior, 18 superseding pleading.”). This means that Plaintiff must allege and plead any viable 19 claims in the FAC again. Plaintiff shall not include new defendants or new 20 allegations that are not reasonably related to the claims asserted in the Complaint. 21 In any amended complaint, Plaintiff should confine his allegations to those 22 operative facts supporting each of his claims. Plaintiff is advised that pursuant to 23 Rule 8, all that is required is a “short and plain statement of the claim showing that 24 the pleader is entitled to relief.” Plaintiff strongly is encouraged to utilize the 25 standard civil rights complaint form when filing any amended complaint, a 26 copy of which is attached. In any amended complaint, Plaintiff should identify the 27 nature of each separate legal claim and make clear what specific factual allegations 28 support each of his separate claims. Plaintiff strongly is encouraged to keep his 1 statements concise and to omit irrelevant details. It is not necessary for Plaintiff to 2 cite case law, include legal argument, or attach exhibits at this stage of the 3 litigation. Plaintiff is advised to omit any claims for which he lacks a sufficient 4 factual basis. 5 The Court cautions Plaintiff that failure to timely file a FAC will result 6 in a recommendation that this action be dismissed for failure to prosecute 7 and/or failure to comply with court orders pursuant to Federal Rule of Civil 8 Procedure 41(b). 9 Plaintiff is not required to file an amended complaint, especially since a 10 complaint dismissed for failure to state a claim without leave to amend may count 11 as a “strike” for purposes of the in forma pauperis statute, 28 U.S.C. § 1915(g).5 12 Instead, Plaintiff may request voluntary dismissal of the action pursuant to Federal 13 Rule of Civil Procedure 41(a) using the attached Notice of Voluntary Dismissal 14 form. 15 Plaintiff is advised that the undersigned Magistrate Judge’s determination 16 herein that the allegations in the Complaint are insufficient to state a particular 17 claim should not be seen as dispositive of the claim. Accordingly, although the 18 undersigned Magistrate Judge believes Plaintiff has failed to plead sufficient factual 19 matter in the pleading, accepted as true, to state a claim for relief that is plausible on 20 its face, Plaintiff is not required to omit any claim or Defendant in order to pursue 21 this action. However, if Plaintiff decides to pursue a claim in an amended 22 complaint that the undersigned Magistrate Judge previously found to be 23 insufficient, then, pursuant to 28 U.S.C. § 636, the undersigned Magistrate Judge 24 25 5 Inmates who have accumulated three of more “strikes” are not permitted to bring a civil lawsuit or appeal a judgment in a civil action in forma pauperis—that is, 26 without prepayment of the filing fee—unless the inmate is under imminent danger 27 of serious physical injury. See 28 U.S.C. § 1915(g). Instead, inmates with three or more “strikes” generally must pay their full filing fee upfront in order to file a civil 28 lawsuit or appeal a civil judgment. 1 || ultimately may submit to the assigned District Judge a recommendation that such 2 || claim may be dismissed with prejudice for failure to state a claim, subject to 3 || Plaintiff's right at that time to file objections. See Fed. R. Civ. P. 72(b); C.D. Cal. 4 || L.R. 72-3. 5 IT IS SO ORDERED. pe) 6 || DATED: May 10, 2021 ws! 7 MARIA A. AUDERO UNITED STATES MAGISTRATE JUDGE

9 || Attachments 10 || Form Civil Rights Complaint (CV-66) 11 |) Form Notice of Dismissal 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15