1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 DARREN MOORE, Case No.: 3:24-cv-2159-RBM-LR CDCR # AZ5561, 11 ORDER: Plaintiff, 12 vs. (1) GRANTING MOTION TO 13 PROCEED IN FORMA PAUPERIS JAMES HILL, Warden; RYAN 14 [Doc. 2]; BARENCHI, MD; M. BLAISDELL, MD;
15 S. GATES, K. RODRIGUEZ, BENNY (2) DISMISSING COMPLAINT FOR MARTIN, MD; CDCR; B. CAMPBELL; 16 FAILURE TO STATE A CLAIM JOHN DOES #1–5, PURSUANT TO 28 U.S.C. 17 Defendants. §§ 1915(e)(2)(B) AND 1915A(b) 18 19 20 Plaintiff Darren Moore (“Plaintiff”), an inmate proceeding pro se, filed a civil rights 21 complaint pursuant to 42 U.S.C. § 1983 (“Complaint”) (Doc. 1), along with a Motion to 22 Proceed In Forma Pauperis (“IFP Motion”) (Doc. 2). In his Complaint, Plaintiff alleges 23 that while he was confined at Richard J. Donovan Correctional Facility (“RJD”), 24 Defendants California Department of Corrections and Rehabilitation (“CDCR”), James 25 Hill, Dr. Ryan Barenchi, Dr. M. Blaisdell, S. Gates, Dr. K. Rodriguez, Dr. Benny Martin, 26 B. Campbell, and Does #1–5 (collectively, “Defendants”) violated his Eighth Amendment 27 right to adequate medical care by delaying surgery to treat his gynecomastia. (See Doc. 1 28 at 2–4; Doc. 1-6 at 1–5.) 1 For the reasons discussed below, the Court GRANTS Plaintiff’s IFP motion and 2 DISMISSES the Complaint without prejudice. 3 I. MOTION TO PROCEED IFP 4 All parties instituting any civil action, suit or proceeding in a district court of the 5 United States, except an application for writ of habeas corpus, must pay a filing fee of 6 $405.1 See 28 U.S.C. § 1914(a). A party may initiate a civil action without prepaying the 7 required filing fee if the Court grants leave to proceed in forma pauperis (“IFP”) based on 8 indigency. 28 U.S.C. § 1915(a); Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 9 2007). 10 To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit 11 regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th 12 Cir. 2015). Prisoners must also submit a “certified copy of the [prisoner’s] trust fund 13 account statement (or institutional equivalent) for . . . the 6-month period immediately 14 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2). From the certified trust 15 account statement, the Court assesses an initial payment of 20% of (a) the average monthly 16 deposits in the account for the past six months, or (b) the average monthly balance in the 17 account for the past six months, whichever is greater, unless the prisoner has no assets. See 18 28 U.S.C. §§ 1915(b)(1), (4). Prisoners who proceed IFP must repay the entire fee in 19 installments regardless of whether their action is ultimately dismissed. 28 U.S.C. 20 § 1915(b)(2); Bruce v. Samuels, 577 U.S. 82, 84 (2016). 21 In support of his IFP Motion, Plaintiff provided a copy of his prison certificate and 22 trust account statement. (Doc. 2 at 4–9.) During the six months prior to filing suit, Plaintiff 23 had an average monthly balance of $245.70 and average monthly deposits of $215.83. (Id. 24
25 26 1 Civil litigants must pay an administrative fee of $55 in addition to the $350 filing fee. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 27 Schedule, § 14 (eff. Dec. 1, 2023)). The additional $55 administrative fee does not apply 28 to persons granted leave to proceed IFP. Id. 1 at 4.) At the time he filed suit, he had an available account balance of $39.96. (Id.) 2 Accordingly, the Court GRANTS Plaintiff’s IFP Motion. Because the initial 3 payment installment would exceed Plaintiff’s available funds, the Court assesses no initial 4 payment. Instead, Plaintiff must pay the full $350 filing fee in installments, pursuant to 28 5 U.S.C. § 1915(b)(2). 6 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 7 A. Legal Standard 8 Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the Court must screen a 9 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous, 10 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 11 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson, 12 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has 13 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the 14 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 15 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a 16 complaint “contain sufficient factual matter . . . to state a claim to relief that is plausible 17 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). 18 While detailed factual allegations are not required, “[t]hreadbare recitals of the elements 19 of a cause of action, supported by mere conclusory statements, do not suffice” to state a 20 claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully- 21 harmed me accusation[s]” fall short of meeting this plausibility standard. Id. 22 To state a claim under § 1983, a plaintiff must plausibly allege “both (1) deprivation 23 of a right secured by the Constitution and laws of the United States, and (2) that the 24 deprivation was committed by a person acting under color of state law.” Tsao v. Desert 25 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012). 26 B. Plaintiff’s Allegations 27 In his Complaint, Plaintiff alleges that he was diagnosed with bilateral gynecomastia 28 in 2020, which causes breast enlargement and other “painful symptoms.” (Doc. 1-6 at 2.) 1 On or around April 6, 2022, Dr. Martin, Plaintiff’s primary care provider at RJD, ordered 2 a bilateral mammogram to rule out other abnormalities and would then consider referring 3 Plaintiff for surgical consultation. (Id.) The mammogram was performed on June 7, 2022. 4 (Doc. 1-3 at 1.) On November 14, 2022, Dr. Martin submitted a request for services 5 (“RSF”), in this case “plastic surgery” for Plaintiff. However, the RSF was denied with 6 instructions to “send [Plaintiff] to general surgery.” (Id.) On November 22, 2022, Dr. 7 Martin submitted an RSF order for general surgery, which was subsequently approved. 8 (Id. at 2.) 9 Plaintiff had an appointment with the general surgeon, Dr. King, on February 15, 10 2023. (Id. at 2.) Dr. King reported that the size of Plaintiff’s gynecomastia was “more 11 than what he would usually take on” and recommended he work with a plastic surgeon to 12 perform the surgery. (Id.; see also Doc. 1-6 at 2.) 13 On July 5, 2023, Dr. Martin submitted an RFS order for Plaintiff to receive plastic 14 surgery. (Doc. 1-3 at 2.) During the five-month period between Plaintiff’s appointment 15 with Dr. King and Dr. Martin submitting the RSF, Plaintiff continued to experience painful 16 symptoms cause by the gynecomastia. (Id.) After the RFS for Plaintiff to receive a plastic 17 surgery consultation was initially denied, Dr. Martin appealed the denial and on August 18 23, 2023, the RSF was approved. (Id.; see also Doc. 1-6 at 2–3.) 19 Plaintiff consulted a plastic surgeon on October 24, 2023, who requested a 20 mammogram and lab work prior to considering surgery. (Doc. 1-3 at 2.) The tests were 21 completed on November 22, 2023. (Id.) On December 8, 2023, Plaintiff had an 22 appointment with Dr. Martin who informed him that his surgery was still approved and 23 was pending scheduling. (Id.; see also Doc. 1-6 at 3.) Plaintiff subsequently wrote “several 24 letters” to Defendant B. Campbell, a “healthcare compliance analyst” for California 25 Correctional Health Care Services (“CCHCS”), about the delay in scheduling the surgery 26 and was later informed that an “appointment was still pending.” (Doc. 1-6 at 3; see Doc. 27 1 at 4.) During this period, Plaintiff continued to suffer pain from his condition and was 28 unable to exercise. (Id.) He also suffered psychologically as a result of being “call[ed] a 1 transgender” by other inmates because of his condition. (Id.) Between January and April 2 2024, Plaintiff submitted several medical grievances regarding the surgery delay. (Id.) 3 On January 9, 2024, Dr. Blaisdall, RJD’s Chief Physician and Surgeon, informed 4 Plaintiff that his referral to a plastic surgeon had been cancelled because the plastic surgeon 5 stated that he did not perform the type of surgery Plaintiff needed. (Doc. 1-4 at 2.) Plaintiff 6 was again seen by a general surgeon on January 25, 2024, who also recommended that a 7 plastic surgeon perform the bilateral mastectomy. (Id.) On March 6, 2024, Plaintiff 8 discussed the recommendation of the general surgeon with Dr. Martin. (Id.) An RSF order 9 for a plastic surgery evaluation was approved on March 19, 2024. (Id.) In an April 15, 10 2024 response to one of Plaintiff’s health care grievances, it was noted that Plaintiff was 11 “pending scheduling for plastic surgery evaluation and primary care provider follow up.” 12 (Id. at 3.) It is unclear from the allegations in the Complaint whether the appointment was 13 ever scheduled or if Plaintiff ever received surgery. (See id.) 14 C. Discussion 15 Plaintiff alleges Defendants violated his Eighth Amendment right to adequate 16 medical care by delaying surgery for gynecomastia and seeks compensatory and punitive 17 damages. (Doc. 1-6 at 6.) 18 1. Defendant CDCR 19 First, the CDCR must be dismissed as a defendant. State prisons, correctional 20 agencies, sub-divisions, or departments under their jurisdiction, are not “persons” subject 21 to suit under § 1983. Hale v. Arizona, 993 F.2d 1387, 1398–99 (9th Cir. 1993) (holding a 22 state department of corrections is an arm of the state, and thus, not a “person” within the 23 meaning of § 1983). Additionally, if Plaintiff named the CDCR as a defendant in an 24 attempt to sue the State of California itself, his claims are clearly barred by the Eleventh 25 Amendment. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (“There can be 26 no doubt . . .that [a] suit against the State and its Board of Corrections is barred by the 27 Eleventh Amendment, unless [the State] has consented to the filing of such a suit.”); 28 Dittman v. California, 191 F.3d 1020, 1025–26 (9th Cir. 1999) (“The State of California 1 has not waived its Eleventh Amendment immunity with respect to claims brought under 2 § 1983 in federal court.”) (internal citations omitted). “This jurisdictional bar applies 3 regardless of the nature of the relief sought.” Pennhurst State Sch. & Hosp. v. Halderman, 4 465 U.S. 89, 100 (1984). 5 Because the CDCR is not a “person” under § 1983, and such claims against the state 6 are barred by the Eleventh Amendment, Plaintiff’s claims against the CDCR are sua sponte 7 DISMISSED. 28 U.S.C. §§ 1915(e)(2)(B)(ii)–(iii), 1915A(b)(1), (2). 8 2. Official Capacity Claims 9 For the same reasons, to the extent Plaintiff is suing Defendants Hill, Barenchi, 10 Blaisdell, Gates, Rodriguez, Martin, Campbell, and Does #1–5 in their official capacities 11 for money damages only, he is barred from doing so. An “official-capacity suit is, in all 12 respects other than name, to be treated as a suit against the entity” and are therefore treated 13 as claims against the State. Kentucky v. Graham, 473 U.S. 159, 166 (1985). State officials 14 sued for damages in their official capacities are not “persons” within the meaning of 15 § 1983. Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997). As 16 such, the Eleventh Amendment bars a prisoner’s § 1983 claims for money damages against 17 state actors sued in their official capacities. Will v. Michigan Dep’t of State Police, 491 18 U.S. 58, 66 (1989). Such suits are no different than suits against the State itself and are 19 thus barred by the Eleventh Amendment. Id. Therefore, Plaintiff’s claims seeking 20 monetary damages against Defendants Hill, Barenchi, Blaisdell, Gates, Rodriguez, Martin, 21 Campbell and Does #1–5 in their official capacities are DISMISSED pursuant to 28 U.S.C. 22 §§ 1915(e)(2)(B)(ii), (iii) and 1915A(b)(1), (2). 23 3. Eighth Amendment 24 Plaintiff also brings Eighth Amendment claims against Defendants Hill, Barenchi, 25 Blaisdell, Gates, Rodriguez, Martin, Campbell, and Does #1–5 in their individual 26 capacities. (Doc. 1-6 at 1–5.) The Eighth Amendment prohibits “cruel and unusual 27 punishments.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). To state an Eighth 28 Amendment claim based on inadequate medical care, a prisoner must show that the 1 plaintiff had a “serious medical need,” and the defendant was “deliberately indifferent” to 2 that need. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 3 429 U.S. 97, 106 (1976)). For purposes of this Order, the Court presumes that Plaintiff’s 4 gynecomastia condition constitutes a serious medical need. Id. (“First, the plaintiff must 5 show a serious medical need by demonstrating that failure to treat a prisoner’s condition 6 could result in further significant injury or the ‘unnecessary and wanton infliction of pain.”) 7 (quoting McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), overruled on other 8 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997)) (internal 9 quotation marks omitted). 10 Moreover, to show deliberate indifference, a plaintiff must plausibly allege the 11 official knew of and disregarded “excessive risk to inmate health and safety.” Toguchi v. 12 Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). “The official must not only be aware of facts 13 from which the inference could be drawn that a substantial risk of serious harm exists,” but 14 that official “must also draw the inference.” Id. Deliberate indifference “may appear when 15 prison officials deny, delay or intentionally interfere with medical treatment.” Colwell v. 16 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014). 17 However, a delay in treatment does not constitute a violation of the Eighth 18 Amendment, unless it was harmful. See McGuckin, 974 F.2d at 1060. While the harm 19 caused by delay need not necessarily be “substantial,” id. at 1060, 1063 n.12, the Eighth 20 Amendment is violated if “delays occurred to patients with problems so severe that delays 21 would cause significant harm and that [d]efendants should have known this to be the case.” 22 Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002). “Deliberate indifference is a high 23 legal standard.” Toguchi, 391 F.3d at 1060. As such, a showing of negligence or 24 inadvertence is insufficient to establish an Eighth Amendment violation. Jett, 439 F.3d at 25 1096; Estelle, 429 U.S. at 105–06. 26 a. Dr. Martin 27 Plaintiff seemingly premises his Eighth Amendment claim against Dr. Martin on the 28 “delay” between Plaintiff’s consultation with Dr. King on February 15, 2023, and Dr. 1 Martin’s submission of the RFS order seeking approval for a plastic surgeon consultation 2 on July 5, 2023. (See Doc. 1-6 at 5.) However, “mere delay of surgery, without more, is 3 insufficient to state a claim of deliberate medical indifference . . . unless the denial was 4 harmful.” Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 5 1985) (citation omitted). 6 In this case, there are insufficient facts to plausibly allege that Dr. Martin delayed 7 his submission of the RFS order with a “knowing disregard” of an “excessive risk” to 8 Plaintiff’s health. See Toguchi, 391 F.3d at 1057. Plaintiff’s allegations do not clearly 9 establish when Dr. Martin became aware of Dr. King’s recommendation or whether Dr. 10 Martin delayed his submission of the RFS order knowing that such a delay would cause 11 “significant harm” to Plaintiff’s health. See Hallett, 296 F.3d at 746. Rather, as currently 12 pled, Plaintiff’s allegations show that Dr. Martin consistently attempted to schedule 13 Plaintiff’s surgery. Indeed, Dr. Martin submitted the initial RFS order for the surgery. 14 (Doc. 1-3 at 2.) When it was denied, Dr. Martin appealed the denial and was ultimately 15 successful in getting it approved. Id. Dr. Martin also appealed the denial of Dr. King’s 16 RFS order requesting an appointment for Plaintiff with a plastic surgeon. (Doc. 1-3 at 2; 17 see also Doc. 1-6 at 2.) 18 Accordingly, Plaintiff fails to plausibly allege that Dr. Martin acted with deliberate 19 indifference and his Eighth Amendment claim against Dr. Martin is therefore 20 DISMISSED. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). 21 b. Dr. Barenchi and Gates 22 Plaintiff alleges Defendants Dr. Ryan Barenchi and S. Gates violated his Eighth 23 Amendment rights by failing to grant his administrative grievances regarding the delay in 24 surgery. (Doc. 1-6 at 3–4.) A prisoner must “exhaust his administrative remedies before 25 filing a lawsuit concerning prison conditions.” Sapp v. Kimbrell, 623 F.3d 813, 821 (9th 26 Cir. 2010) (citing 42 U.S.C. § 1997e(a)). However, the denial of an administrative 27 grievance or claim, without more, is insufficient to establish a civil rights violation because 28 there is no constitutional right to a particular grievance process or outcome. See Mann v. 1 Adams, 855 F.2d 639, 640 (9th Cir. 1988) (“There is no legitimate claim of entitlement to 2 a grievance procedure.”); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (concluding 3 the denial of, or failure to respond to, administrative grievances will not support a civil 4 rights claim); Nelson v. Giurbino, 395 F. Supp. 2d 946, 956 (S.D. Cal. 2005) (reasoning 5 that allegations regarding denial of a director-level appeal do not state a claim because 6 “there is no legal entitlement to a grievance procedure”). Thus, “[w]here the defendant’s 7 only involvement in the allegedly unconstitutional conduct is ‘the denial of administrative 8 grievances or the failure to act, the defendant cannot be liable . . . .’” Grenning v. Klemme, 9 34 F. Supp. 3d 1144, 1157 (E.D. Wash. 2014) (quoting Shehee, 199 F.3d at 300). 10 Here, Plaintiff alleges only that Defendants Barenchi and Gates reviewed his 11 grievances regarding the delay in surgery and failed to rectify the situation.2 (Doc. 1-6 at 12 3; see also Doc. 1-3 at 3; Doc. 1-5 at 2.) Thus, to the extent Plaintiff’s claims against them 13 are based on their responses to his grievance, he fails to state a claim. See Shallowhorn v. 14 Molina, 572 F. App’x 545, 547 (9th Cir. 2014) (affirming dismissal of claims against 15 defendants who “were only involved in the appeals process”) (citing Ramirez v. Galaza, 16 334 F.3d 850, 860 (9th Cir. 2003)). Accordingly, the Court DISMISSES Plaintiff’s claims 17 against Defendants Barenchi and Gates. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1); 18 Iqbal, 556 U.S. at 678. 19 c. Dr. Blaisdell and Dr. Rodriguez 20 Plaintiff also fails to state an Eighth Amendment claim against Defendants Blaisdell 21 and Rodriguez. In his Complaint, Plaintiff alleges that Defendants Blaisdell and Rodriguez 22 “were alerted” to the delay in surgery from his submissions of requests for medical care 23 and administrative grievances from January 20, 2024, February 16, 2024, and April 5, 24
25 26 2 In their responses to Plaintiff’s grievances, neither Defendant Barenchi nor Defendant 27 Gates “denied” Plaintiff’s surgery. Instead, they noted that Plaintiff’s surgery was “approved,” and that his surgical consult appointments were “pending scheduling.” (See 28 Doc. 1-3 at 2; Doc. 1-4 at 2.) 1 2024. (Doc. 1-6 at 3.) Plaintiff, however, appears to merely assume that Defendants 2 Blaisdell and Rodriguez reviewed his submissions. Such speculation is insufficient to 3 plausibly allege Defendant Blaisdell and Rodriguez’s deliberate indifference. See Bell Atl. 4 Corp., v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be enough to raise 5 a right to relief above the speculative level.”). Moreover, assuming Defendants Blaisdell 6 and Rodriguez were aware of Plaintiff’s complaints, Plaintiff provides no specific facts 7 regarding their actions, or failure to act, to delay his surgery. See Jett, 439 F.3d at 1096. 8 During the same time frame that Plaintiff filed his grievances, Plaintiff continued to receive 9 medical care in anticipation of the surgery’s rescheduling. Specifically, he had a 10 consultation with a general surgeon on January 25, 2024, saw his primary care physician 11 on March 9, 2024 to discuss his options based on the general surgeon’s recommendation, 12 was approved to see a plastic surgeon on March 19, 2024, and scheduling for his 13 appointment with a plastic surgeon was pending as of April 15, 2024. (See Doc. 1-4 at 2.) 14 Thus, Plaintiff’s Eighth Amendment claim against Defendants Blaisdell and Rodriguez are 15 DISMISSED. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). 16 d. Defendant Campbell 17 Plaintiff fails to state a claim against Defendant Campbell for similar reasons. 18 Plaintiff alleges that Defendant Campbell is RJD’s “health care compliance analyst,” 19 responsible for “assur[ing] that medical treatment is provided in a timely manner.” (Doc. 20 1-6 at 3.) Plaintiff “wrote several letters” to Defendant Campbell about his delayed surgery 21 and, in response, he “was informed an appointment was pending.” (Id.) 22 As discussed above, to plausibly allege deliberate indifference, Plaintiff must allege 23 that Defendant Campbell personally engaged in a purposeful act or failure to respond to 24 the purported delay in surgery. Jett, 439 F.3d at 1096. In his Complaint, Plaintiff does not 25 provide any factual support for such allegations and fails to specify when he sent the letters 26 27 28 1 to Defendant Campbell or when he received the response. His vague and conclusory 2 allegations are insufficient to support a claim. See Iqbal, 556 U.S. at 678. Plaintiff fails to 3 plausibly allege that Defendant Campbell acted with deliberate indifference and his Eighth 4 Amendment claim is therefore DISMISSED. See id.; 28 U.S.C. §§ 1915(e)(2)(B)(ii), 5 1915A(b)(1). 6 e. Defendant Hill 7 “Under Section 1983, supervisory officials are not liable for actions of subordinates 8 on any theory of vicarious liability.” Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 9 2013) (citation and internal quotation marks omitted). As such, Plaintiff cannot hold 10 Defendant James Hill, the warden at RJD, vicariously liable based on his supervisory 11 position as RJD’s warden. 12 While there is no vicarious liability under § 1983, a “supervisor may be liable only 13 if (1) he or she is personally involved in the constitutional deprivation, or (2) there is a 14 sufficient causal connection between the supervisor’s wrongful conduct and the 15 constitutional violation.” Id. at 977 (citation and internal quotation marks omitted). Here, 16 Plaintiff alleges that he attempted to notify Defendant Hill about his delayed surgery by 17 filing a “regular 602 [administrative appeal].” (Doc. 1-6 at 3.) After his “602 [was] 18 rejected,” he sent “letters” to Defendant Hill concerning the delay in surgery. (Id.) It is 19 not clear when Plaintiff sent the letters, whether they were actually received (or read) by 20 Defendant Hill, or what information was provided about Plaintiff’s condition. These facts 21 are too vague and conclusory to plausibly allege that Defendant Hill had knowledge of the 22 alleged unconstitutional conduct by his subordinates or that he acquiesced to it. See 23 Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012) (citing Iqbal, 566 U.S. at 681–83). 24 25 3 While Plaintiff does not provide dates, it appears the letters were sent some time after his 26 appointment with Dr. Martin on December 8, 2023, during which Plaintiff informed him that his surgery was still approved and was pending scheduling. (See Doc. 1-6 at 3.) 27 Plaintiff was subsequently seen by a general surgeon on January 24, 2024. (See Doc. 1-4 28 at 2.) 1 Therefore, Plaintiff’s claim against Defendant Hill is DISMISSED for failure to state a 2 claim. See 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). 3 f. Does #1–5 4 Finally, Plaintiff also fails to state a claim against Doe Defendants #1–5. The use of 5 fictitiously named or “Doe” defendants is generally not favored. Gillespie v. Civiletti, 629 6 F.2d 637, 642 (9th Cir. 1980) (citation omitted). However, amendment is allowed to 7 substitute true names for fictitiously named defendants. Merritt v. Cnty. of Los Angeles, 8 875 F.2d 765 (9th Cir. 1989). To successfully state a claim for relief, Plaintiff must identify 9 each Doe defendant individually (e.g., Doe 1, Doe 2, etc.) and explain the specific actions 10 taken by each defendant that deprived him of his constitutional rights. See Barren v. 11 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“A plaintiff must allege facts, not simply 12 conclusions, t[o] show that [each defendant] was personally involved in the deprivation of 13 his civil rights.”); Keavney v. Cnty. of San Diego, Case No.: 3:19-cv-01947-AJB-BGS, 14 2020 WL 4192286, at *4 (S.D. Cal. July 21, 2020) (“A plaintiff may refer to unknown 15 defendants as Defendant John Doe 1, John Doe 2, John Doe 3, and so on, but he must allege 16 specific facts showing how each particular doe defendant violated his rights.”). 17 Here, Plaintiff identifies Does #1–5 only as “medical care providers.” (Doc. 1-6 at 18 1.) As he fails to allege any specific facts regarding the individual conduct of any of the 19 Doe Defendants, he fails to state a claim against Doe Defendants #1–5. See Iqbal, 556 20 U.S. at 678; see also Leer v. Murphy, 844 F.2d 628, 633–34 (9th Cir. 1988) (finding that 21 the focus for § 1983 claims must be on the “individual defendant,” and his individual 22 “duties [and] discretion”); Williams v. Cnty. of Los Angeles Dep’t of Pub. Soc. Servs., Case 23 No. CV 14-7625 JVS (JC), 2016 WL 8730914, at *5 (C.D. Cal. May 2, 2016), report and 24 recommendation adopted, No. CV 14-7625 JVS (JC), 2016 WL 8737230 (C.D. Cal. May 25 20, 2016) (“Conclusory allegations that an indistinguishable group of defendants 26 essentially engaged in identical misconduct . . . are insufficient to show that plaintiff is 27 entitled to relief from any individual defendant.”). 28 1 D. Conclusion 2 As currently pled, Plaintiff has not stated a plausible Eighth Amendment claim 3 against any of the Defendants in their individual capacities and the Complaint is therefore 4 DISMISSED in its entirety. See 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1); Iqbal, 5 556 U.S. at 678. 6 Given Plaintiff’s pro se status, the Court nonetheless GRANTS him leave to amend 7 his Complaint, as detailed below. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 8 2015) (“A district court should not dismiss a pro se complaint without leave to amend 9 [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the 10 deficiencies of the complaint could not be cured by amendment.’”) (quoting Akhtar v Mesa, 11 698 F.3d 1202, 1212 (9th Cir. 2012)). 12 III. CONCLUSION 13 Based on the foregoing considerations, the Court: 14 1. GRANTS Plaintiff’s IFP Motion (Doc. 2). 15 2. ORDERS the Secretary of the CDCR, or his designee, to collect the $350 16 filing fee owed in this case by collecting monthly payments from the account in an amount 17 equal to twenty percent (20%) of the preceding month’s income and forward payments to 18 the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 19 28 U.S.C. § 1915(b)(2). All payments must clearly identify the name and case number 20 assigned to this action. 21 3. DISMISSES the Complaint in its entirety without prejudice for failure to state 22 a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). 23 4. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 24 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, CA 94283-0001, by U.S. 25 Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov. 26 5. GRANTS Plaintiff leave to file a First Amended Complaint on or before 27 July 18, 2025, which cures the deficiencies of pleading noted in this Order. Plaintiff’s 28 Amended Complaint must be complete by itself without reference to his original 1 ||Complaint. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., 2 896 F.2d 1542, 1546 (9th Cir. 1989) (‘[A]n amended pleading supersedes the 3 || original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims 4 dismissed with leave to amend which are not re-alleged in an amended pleading may be 5 || “considered waived if not repled.”). 6 If Plaintiff fails to file a First Amended Complaint on or before July 18, 2025, the 7 ||Court will enter a final order dismissing this civil action based both on failure to state a 8 ||claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(Gi) and 9 ||§ 1915A(b)(1), and failure to prosecute in compliance with a court order. See Lira vy. 10 || Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 11 ||the opportunity to fix his complaint, a district court may convert the dismissal of the 12 complaint into dismissal of the entire action.”). 13 IT IS SO ORDERED. 14 || DATE: June 5, 2025 1 pt Barney, Mtoe 16 HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 14 VAA ALEA □□□□