Patino v. County of Merced

• Court: District Court, E.D. California
• Decided: March 3, 2020
• Docket: 1:18-cv-01468
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 ELENOR SKYE VILLANUEVA PATINO CASE NO. 1:18-CV-01468-AWI-SAB et al., 5 Plaintiffs, ORDER GRANTING CFMG 6 DEFENDANTS’ MOTION TO DISMISS v. 7 (Doc. No. 33) COUNTY OF MERCED et al., 8 Defendants. 9 10 I. Introduction 11 This lawsuit is about a man who suffered and died from a fungal disease commonly known 12 as “Valley Fever” while the man was incarcerated in a Merced County jail. The man’s two 13 daughters, Elenor Patino and Lillyanna Patino, filed this lawsuit against Merced County and 14 several members of the jail’s staff, claiming that the county and staff members were deliberately 15 indifferent to the man’s serious medical needs in violation of the Eighth Amendment. Several of 16 the staff members — namely, Jessica Aguilar, Brandon Boggs, Jamie Burns, Cindy Estrebillo, 17 Debbie Mandujano, and Amber Nunes — moved the Court pursuant to Rule 12(b)(6) of the 18 Federal Rules of Civil Procedure to dismiss the deliberate indifference claim against them. That 19 motion is now before the Court. 20 II. Legal Standard for Rule 12(b)(6) Motion to Dismiss 21 Under Rule 12(b)(6), a claim may be dismissed because of the plaintiff’s “failure to state a 22 claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 23 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts 24 alleged under a cognizable legal theory. See Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th 25 Cir. 2015). In reviewing a complaint under Rule 12(b)(6), all well-pleaded allegations of material 26 fact are taken as true and construed in the light most favorable to the non-moving party. Kwan v. 27 SanMedica, Int’l, 854 F.3d 1088, 1096 (9th Cir. 2017). However, complaints that offer no more 28 than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will 1 not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Johnson v. Federal Home Loan Mortg. 2 Corp., 793 F.3d 1005, 1008 (9th Cir. 2015). The Court is “not required to accept as true 3 allegations that contradict exhibits attached to the Complaint or matters properly subject to judicial 4 notice, or allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 5 inferences.” Seven Arts Filmed Entm’t, Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 6 (9th Cir. 2013). To avoid a Rule 12(b)(6) dismissal, “a complaint must contain sufficient factual 7 matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 8 678; Mollett, 795 F.3d at 1065. In assessing a motion to dismiss, courts may consider documents 9 attached to the complaint, documents incorporated by reference in the complaint, or matters 10 subject to judicial notice. In re NVIDIA Corp. Sec. Litig., 768 F.3d 1046, 1051 (9th Cir. 2014). If 11 a motion to dismiss is granted, “[the] district court should grant leave to amend even if no request 12 to amend the pleading was made . . . .” Ebner v. Fresh, Inc., 838 F.3d 958, 962 (9th Cir. 2016). 13 However, leave to amend need not be granted if amendment would be futile or the plaintiff has 14 failed to cure deficiencies despite repeated opportunities. Garmon v. County of L.A., 828 F.3d 15 837, 842 (9th Cir. 2016). 16 III. Facts1 17 A. The parties. 18 Luis Patino, a twenty-nine-year-old man, was incarcerated at Merced County’s “Mail Jail” 19 from June 24, 2017, to September 27, 2017. Patino died at the jail on September 27, 2017, from 20 disseminated coccidioidomycosis. 21 Patino’s two minor daughters, Plaintiffs Elenor Patino and Lillyanna Patino, filed this 22 lawsuit against Merced County and several members of the jail’s staff, including staff members 23 employed by California Forensic Medical Group, Inc. 24 California Forensic Medical Group, Inc. (“CFMG”) is a company that provides healthcare 25 services to adult and juvenile corrections facilities in California. Merced County contracted 26 CFMG to administer medical care and medication at the Main Jail. 27

28 1 The facts come from the factual allegations in Plaintiffs’ first amended complaint, Doc. No. 21, which the Court 1 Defendants Jessica Aguilar, Brandon Boggs, Cindy Estrebillo, Debbie Mandujano, Amber 2 Nunes, Jamie Burns, and Chialia Lewis (hereafter “CFMG Defendants”) were employees of 3 CFMG who provided healthcare services at the jail at the time of Patino’s incarceration. 4 B. Explanation of Valley Fever and disseminated coccidioidomycosis. 5 Valley Fever is the initial form of a fungal infection caused by coccidioides. Valley Fever 6 is often mild, with few, if any, symptoms. However, if the initial coccidioidomycosis infection 7 does not completely resolve, then it may progress to a chronic form of pneumonia known as 8 chronic coccidioidomycosis. Disseminated coccidioidomycosis occurs when the infection 9 disseminates beyond the lungs to other parts of the body, often including the skin, bones, liver, 10 brain, heart, and membranes that protect the brain and spinal cord. The signs and symptoms of 11 disseminated coccidioidomycosis depend on which parts of the body are affected and may include 12 nodules, ulcers, and skin lesions; painful lesions in the skull, spine, or other bones; painful swollen 13 joints, especially in the knees or ankles; and meningitis. 14 Healthcare providers can easily diagnose Valley Fever by relying on the patient’s medical 15 and travel history, symptoms, physical examinations, and laboratory tests. The most common way 16 that healthcare providers test for Valley Fever is by taking a blood sample and sending it to a 17 laboratory to look for coccidioides antibodies or antigens. Other methods for diagnosing Valley 18 Fever include skin tests, tissue biopsies, and imaging tests, such as chest x-rays or CT scans of the 19 lungs. Severe cases of Valley Fever can be treated with a prescription antifungal medication. 20 The presence of Valley Fever has been increasing in correctional institutions in the San 21 Joaquin Valley, wherein Merced County and the Main Jail are located. In some correctional 22 institutions between 2006 and 2010, the morbidity rate for Valley Fever was as high as seven 23 percent. 24 C. Patino’s experience in jail with Valley Fever and disseminated coccidioidomycosis. 25 When Patino was first booked at the jail, Patino reported to the jail’s staff that he had a 26 history of heart disease, high blood pressure, asthma, bipolar and post-traumatic stress disorder, 27 and a suicide attempt. 28 1 On September 14, 2017, Patino complained to the jail’s staff that he had been experiencing 2 for three days a sharp, strong pain in the left side of his rib cage. Patino rated the pain as “7 on a 3 scale of 0-10.” In response to this complaint, Patino was treated by Boggs and Estrebillo. Patino 4 told Boggs and Estrebillo that he did not know how the pain started, but the pain started after he 5 had worked out. Boggs and Estrebillo diagnosed Patino with “MS-Non Traumatic: Vague Muscle 6 Pain” and treated Patino for “a non-traumatic musculoskeletal complaint.” Boggs and Estrebillo 7 gave Patino ibuprofen. 8 On September 19, 2017, Patino was given an influenza vaccine by Burns and Lewis. 9 On September 20, 2017, Patino complained to the jail’s staff that he was “still” having 10 pains while breathing and was experiencing shortness of breath and chest pain during and after 11 coughing. Patino asked to be “checked again.” Patino reported that his cough was productive 12 with yellow sputum. Patino reported that the symptoms began on September 17, 2017, and the 13 onset was gradual. Patino was treated by Boggs and Nunes, who diagnosed Patino with a 14 common cold and upper respiratory infection and prescribed him with guaifenesin, an expectorant, 15 and chlorpheniramine, an antihistamine. 16 On September 21, 2017, Patino complained to the jail’s staff that he was experiencing 17 sharp chest pain and a continuous cough. Patino reported that the medication previously given to 18 him was not helping. Patino also reported that he did not feel safe in his cell because he was 19 keeping his cellmates from resting due to his medical issues, such as coughing, and he believed his 20 cellmates were getting upset with him. A CFMG employee2 diagnosed Patino with “Chest Pain: 21 Musculal-Skeletal.” At approximately 8:13 p.m. on September 21, 2017, Aguilar placed Patino in 22 a sobering cell for observation, without a mattress and away from other inmates. At 8:40 p.m. on 23 September 21, 2017, a CFMG employee3 reported that Patino had a continuous cough. 24 At approximately 9:00 a.m. on September 22, 2017, Patino told a CFMG employee4 that 25 “he still does not feel well.” Patino told the CFMG employee that he was still experiencing chest 26 pain and coughing. Patino told the CFMG employee that it was not safe for him to be in his cell 27 2 Plaintiffs do not allege who, exactly, the CFMG employee was. 28 3 Plaintiffs do not allege who, exactly, the CFMG employee was. 1 and “he wants to hurt everyone around him.” The CFMG employee gave Tylenol to Patino for a 2 fever. 3 At some point on September 22, 2017, Patino was placed in an interview room. Patino 4 told a prison officer that he could not be in his cell due to his “mental status.” Patino told the 5 prison officer that “he wanted to hurt somebody.” Mandujano met with Patino, and Patino told 6 Mandujano that “he has not been taking his [mental health] medications,” and Patino asked 7 Mandujano to be placed back on his mental health medications. Mandujano reported that Patino 8 would be given his mental health medications. 9 At approximately 6:14 p.m. on September 22, 2017, Patino complained of chest pain on 10 his left side, possibly related to coughing and laying on the floor without a mattress. 11 On September 24, 2017, Patino’s mother visited Patino and observed that Patino appeared 12 sickly and feverish and was complaining of a sharp pain in his abdomen and loss of appetite. 13 On September 25, 2017, Mandujano performed a health / psychiatry visit on Patino. 14 Patino told Mandujano that he no longer wanted to take his mental health medications because 15 they made him “feel weird.” 16 During the two weeks preceding September 27, 2017, Patino’s three sisters visited Patino 17 and complained that Patino required urgent medical attention. 18 On September 27, 2017, Patino was in a cell with other cellmates. While doing pushups, 19 Patino had difficulty getting up. One of the cellmates helped Patino sit up. Patino appeared to 20 lose consciousness and was taken out of the cell. Patino was treated by Burns and Lewis, who 21 made no mention of Valley Fever in treating Patino. 22 On September 27, 2017, Patino died of disseminated coccidioidomycosis. According to 23 the autopsy report, Patino suffered from (1) pulmonary coccidioidomycosis; (2) paracervical, 24 carinal, and hilar lymph node involvement by organizing coccidioidomycosis; (3) fibrinous 25 exudates on external surfaces of pericardial sac and thymus; (4) generalized visceral congestion; 26 (5) hepatomegaly (3075 grams), with steatohepatitus and eosinophilic infiltrates; and (6) 27 splenomegaly (520 grams), congestive, with diffuse lymphoid hyperplasia and rare abscesses. 28 1 Defendants never provided Patino with antifungal medications to treat Valley Fever and 2 disseminated coccidioidomycosis. 3 IV. Discussion 4 A. Legal standard for deliberate indifference to a convicted prisoner’s right to adequate medical treatment under the Eighth Amendment. 5 6 Plaintiffs claim that the CFMG Defendants were deliberately indifferent to Patino’s serious 7 medical needs in violation of the Eighth Amendment.5 “[T]he treatment a prisoner receives in 8 prison and the conditions under which he is confined are subject to scrutiny under the Eighth 9 Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted). “The [Eighth] 10 Amendment . . . imposes duties on these [prison] officials, who must provide humane conditions 11 of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, 12 and medical care, and must take reasonable measures to guarantee the safety of the inmates.” Id. 13 (citations omitted). 14 “A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an 15 inmate violates the Eighth Amendment.” Id. at 828 (citations omitted). “[D]eliberate indifference 16 describes a state of mind more blameworthy than negligence.” Id. at 835 (citations omitted). 17 Deliberate indifference exists “somewhere between the poles of negligence at one end and purpose 18 or knowledge at the other.” Id. at 836 (citations omitted). “It is, indeed, fair to say that acting or 19 failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the 20 equivalent of recklessly disregarding that risk.” Id. “[T]he official must . . . be aware of facts 21 from which the inference could be drawn that a substantial risk of serious harm exists.” Id. at 837. 22 23

24 5 In the complaint, Plaintiffs also claim that the CFMG Defendants were deliberately indifferent to Patino’s serious medical needs in violation of the Fourteenth Amendment. Whether Plaintiffs’ deliberate indifference claim is 25 premised on the Eighth Amendment or the Due Process Clause of the Fourteenth Amendment depends on whether Patino was a convicted prisoner or a pretrial detainee. See Gordon v. Cty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 26 2018). Whereas a pretrial detainee’s right to medical treatment arises under the Due Process Clause of the Fourteenth Amendment, a convicted prisoner’s right to medical treatment arises under the Eighth Amendment. Plaintiffs’ 27 complaint does not specifically allege whether Patino was a pretrial detainee or convicted prisoner. But in Plaintiffs’ opposition to the CFMG Defendants’ motion to dismiss, Plaintiffs addressed the deliberate indifference claim only 28 under the Eighth Amendment standard. Therefore, for purposes of adjudicating the CFMG Defendants’ motion to 1 “In the Ninth Circuit, the test for deliberate indifference consists of two parts. First, the 2 plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner’s 3 condition could result in further significant injury or the unnecessary and wanton infliction of 4 pain. Second, the plaintiff must show the defendant’s response to the need was deliberately 5 indifferent.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citations omitted). 6 Under the first prong, “deliberate indifference to medical needs amounts to an Eighth 7 Amendment violation only if those needs are ‘serious.’” McGuckin v. Smith, 974 F.2d 1050, 8 1059 (9th Cir. 1992) (citations omitted). “A ‘serious’ medical need exists if the failure to treat a 9 prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton 10 infliction of pain.’” Id. (citations omitted). “The existence of an injury that a reasonable doctor or 11 patient would find important and worthy of comment or treatment; the presence of a medical 12 condition that significantly affects an individual’s daily activities; or the existence of chronic and 13 substantial pain are examples of indications that a prisoner has a ‘serious’ need for medical 14 treatment.” Id. at 1059-60 (citations omitted). 15 The second prong — that the defendant’s response to the serious medical need was 16 deliberately indifferent — is satisfied by showing that (1) “the course of treatment the doctors 17 chose was medically unacceptable under the circumstances” and (2) “that the defendants chose 18 this course in conscious disregard of an excessive risk to plaintiff’s health.” Snow v. McDaniel, 19 681 F.3d 978, 987-88 (9th Cir. 2012) (citations omitted). Deliberate indifference “may appear 20 when prison officials deny, delay or intentionally interfere with medical treatment, or it may be 21 shown by the way in which prison physicians provide medical care.” Jett, 439 F.3d at 1096 22 (citations omitted). However, the defendant’s inadvertent or negligent failure to provide adequate 23 medical care does not alone show deliberate indifference under the Eighth Amendment. Id. 24 (citations omitted). “Even proof that a physician has committed medical malpractice does not 25 necessarily violate the Eighth Amendment.” Snow, 681 F.3d at 987 (citations omitted). See also 26 Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004) (“A showing of medical malpractice or 27 negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment.”). 28 “A difference of opinion between a physician and the prisoner — or between medical 1 professionals — concerning what medical care is appropriate does not amount to deliberate 2 indifference.” Snow, 681 F.3d at 987 (9th Cir. 2012). “[W]here a defendant has based his actions 3 on a medical judgment that either of two alternative courses of treatment would be medically 4 acceptable under the circumstances, plaintiff has failed to show deliberate indifference, as a matter 5 of law.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 6 “A prison official cannot be found liable under the Eighth Amendment for denying an 7 inmate humane conditions of confinement unless the official knows of and disregards an excessive 8 risk to inmate health or safety; the official must both be aware of facts from which the inference 9 could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” 10 Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002). “Thus, a reasonable 11 prison official understanding that he cannot recklessly disregard a substantial risk of serious harm, 12 could know all of the facts yet mistakenly, but reasonably, perceive that the exposure in any given 13 situation was not that high. In these circumstances, he would be entitled to qualified immunity.” 14 Id. 15 B. Plaintiffs’ complaint fails to show deliberate indifference by the CFMG Defendants. 16 Defendants argue that Plaintiffs’ complaint fails to show that the CFMG Defendants were 17 deliberately indifferent to Patino’s serious medical needs. According to Defendants, the complaint 18 shows, at most, that the CFMG Defendants were negligent, which does not amount to deliberate 19 indifference. The Court agrees with Defendants. In each instance where the CFMG Defendants 20 were alleged to have responded to Patino’s medical complaints between September 14, 2017, and 21 September 27, 2017, the complaint fails to adequately show that, first, the CFMG Defendants’ 22 course of treatment was medically unacceptable under the circumstances and, second, the CFMG 23 Defendants chose the course of treatment in conscious disregard of an excessive risk to Patino’s 24 health. 25 For example, after Patino complained on September 14, 2017, of sharp pain in his rib cage 26 after having worked out, Boggs and Estrebillo diagnosed Patino with muscle pain and treated 27 Patino with ibuprofen. These allegations do not show that Boggs’s and Estrebillo’s course of 28 1 treatment was medically unacceptable or taken in conscious disregard of an excessive risk to 2 Patino’s health. 3 Similarly, after Patino complained of chest pain and coughing on September 20, 2017, 4 Boggs and Nunes diagnosed Patino with a common cold and upper respiratory infection and 5 prescribed Patino with an expectorant and antihistamine. These allegations do not show that 6 Boggs’s and Nunes’s course of treatment was medically unacceptable or taken in conscious 7 disregard of an excessive risk to Patino’s health. 8 Similarly, after Patino complained of chest pain and coughing on September 21, 2017, 9 Aguilar placed Patino in a sobering cell for observation. These allegations do not show that 10 Aguilar’s course of treatment was medically unacceptable or taken in conscious disregard of an 11 excessive risk to Patino’s health. 12 Similarly, after Patino complained that he “still does not feel well,” was experiencing chest 13 pain and coughing, and “wanted to hurt somebody” because he had not been taking his mental 14 health medications, the responding (and unidentified) CFMG employee gave Tylenol to Patino for 15 a fever and Mandujano reported that Patino would be given his mental health medications. These 16 allegations do not show that the unidentified CFMG employee’s and Mandujano’s course of 17 treatment was medically unacceptable or taken in conscious disregard of an excessive risk to 18 Patino’s health. 19 Similarly, after Patino lost consciousness on September 27, 2017, Burns and Lewis treated 20 Patino and made no mention of Valley Fever. These allegations do not show that Burns’s and 21 Lewis’s course of treatment was medically unacceptable or taken in conscious disregard of an 22 excessive risk to Patino’s health. 23 At most, Plaintiffs’ foregoing allegations show that the CFMG Defendants misdiagnosed 24 Plaintiff’s medical condition, but the allegations do not show that the misdiagnosis was the result 25 of deliberate indifference. Consequently, the complaint fails to show deliberate indifference as a 26 matter of law. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 27 Plaintiffs’ reliance on Scalia v. County of Kern, 308 F. Supp. 3d 1064 (E.D. Cal. 2018) is 28 unavailing and, in fact, supports the Court’s foregoing analysis. In Scalia the complaint’s 1 allegations told the following story: (1) a female inmate fell five feet from her bunkbed onto a 2 concrete floor, and the inmate hit her head on the concrete floor; (2) because of the inmate’s 3 impact with the concrete floor, the inmate immediately experienced a visible bump over her left 4 eyebrow; (3) the inmate was transported from her cell to the jail’s infirmary by wheelchair 5 because the inmate was unable to walk and could not ambulate on her own; (4) the responding 6 healthcare provider spent less than ten minutes with the inmate and discharged the inmate without 7 any follow-up plan to monitor the inmate, without seeking the opinion of a physician, and without 8 conducting any tests of head trauma; (5) the inmate ultimately died from head trauma. The 9 complaint alleged that the inmate “faced a serious medical need for evaluation and treatment 10 regarding possible traumatic brain injury and that in the case of traumatic brain injury immediate 11 medical treatment is required to avoid bleeding in the brain, brain swelling, subdural hematoma, 12 and other progressively serious results including death.” Id. at 1077. 13 The district court in Scalia concluded that these allegations sufficiently showed deliberate 14 indifference. But the allegations in Scalia are easily distinguishable from the allegations in 15 Plaintiffs’ complaint. Based on the allegations in Scalia, the healthcare provider’s course of 16 treatment (or lack thereof) was obviously unacceptable: the inmate complained of head trauma and 17 clearly experienced head trauma, but the healthcare provider failed to provide treatment that was 18 acceptable for head trauma — such as monitoring the inmate, seeking the opinion of a physician, 19 and conducting head trauma tests. Here, by contrast, Plaintiffs allege that Patino experienced a 20 gradual onset of coughing, shortness of breath, and chest pain over thirteen-day period, all of 21 which occurred shortly after Patino exercised. In response, the CFMG Defendants — on 22 successive and separate occasions during the thirteen-day period — diagnosed Patino with muscle 23 pain, a cold, and an upper respiratory infection and treated Patino by giving him Tylenol, 24 ibuprofen, an influenza vaccine, and monitoring him a sobering cell. These allegations do not 25 show that it was medically unacceptable for the CFMG Defendants to not diagnose and treat 26 Plaintiff for Valley Fever and disseminated coccidioidomycosis. Moreover, these allegations do 27 not show that the CFMG Defendants chose their course of treatment in conscious disregard of an 28 excessive risk to Patino’s health. 1 Defendants also argue that Plaintiffs’ deliberate indifference claim against the CFMG 2 Defendants should be dismissed because Plaintiffs “merely conclusory utilize the requisite § 1983 3 language and lump all defendants, both medical and custodial into a single entity.” Doc. No. 33-1 4 at 6. The Court disagrees. The complaint levels specific factual allegations against each of the 5 CFMG Defendants — although, as discussed supra, those allegations fail to show deliberate 6 indifference by any of the CFMG Defendants. See, e.g., Doc. No. 21 at ¶ 42 (allegation against 7 Aguilar); id. at ¶ 38 (allegation against Boggs); id. at ¶ 52 (allegation against Burns); id. at ¶ 38 8 (allegation against Estrebillo); id. at ¶ 51 (allegation against Mandjano); id. at ¶ 40 (allegation 9 against Nunes). 10 C. Dismissal with leave to amend. 11 Because the complaint fails to state a deliberate indifference claim against the CFMG 12 Defendants, the deliberate indifference claim against the CFMG Defendants will be dismissed. 13 However, because it is not clear that the deficiencies with the deliberate indifference claim cannot 14 be cured by amendment, and because Plaintiffs have not previously attempted to cure the 15 deficiencies with the deliberate indifference claim,6 the deliberate indifference claim against the 16 CFMG Defendants will be dismissed with leave to amend. See Garmon v. County of L.A., 828 17 F.3d 837, 842 (9th Cir. 2016) (suggesting that leave to amend should be granted if it is possible to 18 cure the complaint’s deficiencies and the plaintiff has not previously been given the opportunity to 19 cure the deficiencies); Sarkiss v. Duncan, 2017 WL 10562979, at *8 (C.D. Cal. Sept. 22, 2017) 20 (granting leave to amend because it was not “absolutely clear” that it was futile to attempt to cure 21 the deficiencies with the complaint’s medical treatment deliberate indifference claim). 22 Accordingly, if Plaintiffs desire to pursue their deliberate indifference claim against the CFMG 23 Defendants, then Plaintiffs must file an amended deliberate indifference claim by March 17, 2020. 24 The amended claim must allege overt acts or omissions that show that each CFMG Defendant was 25 deliberately indifferent to Plaintiff’s serious medical needs. 26 27 6 By way of a stipulation and order, Plaintiffs previously amended their complaint — but that amendment simply 28 added new defendants to Plaintiffs’ claims. See Doc. No. 19 (stipulation to amend complaint); Doc. No. 20 (order 1 ORDER 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. The CFMG Defendants’ motion to dismiss (Doc. No. 33) is GRANTED, as follows; 4 a. Plaintiffs’ deliberate indifference claim against the CFMG Defendants (first 5 cause of action) is DISMISSED with leave to amend; 6 b. Plaintiffs shall have until March 17, 2020, to FILE an amended deliberate 7 indifference claim against the CFMG Defendants. The failure to file an 8 amended deliberate indifference claim against the CFMG Defendants by March 9 17, 2020, will result in the dismissal with prejudice of the deliberate 10 indifference claim against the CFMG Defendants. 11 D IT IS SO ORDERED. 13 | Dated: __March 3, 2020 — 7 Zz : Z Cb Led SENIOR DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28