1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HERSHEL WAYNE CASTO, II, No. 2:19-cv-2209-EFB P 12 Plaintiff, 13 v. ORDER 14 GAVIN NEWSOM, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. The court screened the original complaint on April 22, 2020, found that plaintiff 19 had failed to state sufficient facts to show that his claims were properly joined in one action and 20 had failed to comply with Federal Rule of Civil Procedure 8(a). ECF No. 6. Plaintiff has filed an 21 amended complaint, which is before the court for screening under 28 U.S.C. § 1915A. ECF No. 22 9. 23 I. Screening 24 A. Requirement and Standards 25 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 28 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 1 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 2 relief.” Id. § 1915A(b). 3 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 4 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 5 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 8 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 9 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 10 U.S. 662, 679 (2009). 11 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 12 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 13 action.” Twombly, 550 U.S. at 555-57. In other words, “[t]hreadbare recitals of the elements of a 14 cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678. 15 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 16 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 17 content that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 19 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 20 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 21 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 22 B. Factual Allegations 23 Plaintiff alleges that, on or around August 18, 2017, he fell and suffered broken vertebrae 24 in the presence of correctional officers Hernandez and Bentz. The officers allegedly refused to 25 summon medical care for plaintiff and laughed at him. Plaintiff then submitted several requests 26 for medical care but was not seen by medical staff until over two weeks later. 27 Plaintiff claims that when he was finally seen by registered nurse Oania on September 13, 28 2017, she said nothing was wrong with him and refused to refer him to a doctor. Thereafter, 1 plaintiff’s work supervisor again sent plaintiff to the clinic because of his difficulties standing and 2 walking. He alleges that Oania again refused to refer plaintiff to a doctor and threatened to file a 3 disciplinary charge against him when he asked for a second opinion. 4 Plaintiff was not seen by a doctor for his back injuries until October 19, 2017. Dr. 5 Matharu refused to order an MRI and ordered an x-ray only for plaintiff’s lumbar spine, even 6 though plaintiff’s pain was in his thoracic spine. Plaintiff claims that Matharu deliberately 7 ignored the crushed bones in plaintiff’s spine and a small infection that had started there. He 8 diagnosed plaintiff with Wegener’s Disease and prescribed plaintiff immunosuppressant 9 medications. 10 Plaintiff requested emergency medical attention seven times over the next six months 11 before he was hospitalized. During this time, three Jane Doe nurses allegedly refused to send 12 plaintiff to the hospital and tried to make him walk back to his housing unit, even though plaintiff 13 was in extreme pain and could not walk. Plaintiff claims that he fainted, but the nurses still 14 refused to send him to the hospital. 15 Drs. Rudis and Matharu also allegedly refused to send plaintiff to the hospital, refused to 16 order MRIs, and prescribed plaintiff psychotropic medication for pain management even though 17 this was “not allowed” due to plaintiff’s depression diagnosis. Nurses Perez and Clark-Barlow 18 also repeatedly refused to send plaintiff to the hospital despite his obvious injuries, refused him 19 unspecified ADA accommodations, and laughed at his inability to walk and stand up straight. 20 On February 22, 2018, plaintiff was seen by the Institutional Classification Committee, 21 chaired by defendant Burton, who was “acting on behalf of Warden Lizarraga.” Plaintiff and 22 psychologist Ponder told the committee that it would be detrimental to plaintiff’s health and back 23 injury to transfer plaintiff to another prison, but Burton decided to transfer plaintiff to CSP-Sac (a 24 transfer which apparently never happened). Burton allegedly said he did not care if the transfer 25 would damage plaintiff, just so long as plaintiff was no longer housed in Burton’s facility. 26 Plaintiff says that he was sent to U.C. Davis Medical Center on February 26, 2018, where 27 care providers discovered extreme injuries to his spine and an infection that had been exacerbated 28 by the immunosuppressants prescribed by Dr. Matharu and had caused further significant injury. 1 When plaintiff returned to the prison, Dr. Smith discontinued the pain medications he had been 2 prescribed at the hospital and replaced them with Tylenol 3 and Gabapentin even though he knew 3 that plaintiff suffered from hepatitis C. 4 On April 9, 2018, Dr. Matharu allegedly threatened to transfer plaintiff to another prison if 5 plaintiff did not agree to discontinue his narcotic medications. Plaintiff says that he refused, and 6 5-6 days later he was informed by his correctional counselor that his doctor had changed 7 something in his chart that forced her to do an emergency transfer of plaintiff to a level 4 8 institution, Salinas Valley State Prison. A nurse allegedly told plaintiff that Matharu would 9 change the chart back only if plaintiff agreed to discontinue his narcotic medications. 10 Plaintiff claims that Dr. Smith retaliated against plaintiff for filing healthcare grievances 11 by refusing to approve all medical treatments which required his approval (such as pain 12 medications, orthopedic shoes, and insoles).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HERSHEL WAYNE CASTO, II, No. 2:19-cv-2209-EFB P 12 Plaintiff, 13 v. ORDER 14 GAVIN NEWSOM, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. The court screened the original complaint on April 22, 2020, found that plaintiff 19 had failed to state sufficient facts to show that his claims were properly joined in one action and 20 had failed to comply with Federal Rule of Civil Procedure 8(a). ECF No. 6. Plaintiff has filed an 21 amended complaint, which is before the court for screening under 28 U.S.C. § 1915A. ECF No. 22 9. 23 I. Screening 24 A. Requirement and Standards 25 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 27 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 28 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 1 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 2 relief.” Id. § 1915A(b). 3 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 4 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 5 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 6 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 7 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 8 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 9 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 10 U.S. 662, 679 (2009). 11 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 12 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 13 action.” Twombly, 550 U.S. at 555-57. In other words, “[t]hreadbare recitals of the elements of a 14 cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678. 15 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 16 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 17 content that allows the court to draw the reasonable inference that the defendant is liable for the 18 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 19 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 20 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 21 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 22 B. Factual Allegations 23 Plaintiff alleges that, on or around August 18, 2017, he fell and suffered broken vertebrae 24 in the presence of correctional officers Hernandez and Bentz. The officers allegedly refused to 25 summon medical care for plaintiff and laughed at him. Plaintiff then submitted several requests 26 for medical care but was not seen by medical staff until over two weeks later. 27 Plaintiff claims that when he was finally seen by registered nurse Oania on September 13, 28 2017, she said nothing was wrong with him and refused to refer him to a doctor. Thereafter, 1 plaintiff’s work supervisor again sent plaintiff to the clinic because of his difficulties standing and 2 walking. He alleges that Oania again refused to refer plaintiff to a doctor and threatened to file a 3 disciplinary charge against him when he asked for a second opinion. 4 Plaintiff was not seen by a doctor for his back injuries until October 19, 2017. Dr. 5 Matharu refused to order an MRI and ordered an x-ray only for plaintiff’s lumbar spine, even 6 though plaintiff’s pain was in his thoracic spine. Plaintiff claims that Matharu deliberately 7 ignored the crushed bones in plaintiff’s spine and a small infection that had started there. He 8 diagnosed plaintiff with Wegener’s Disease and prescribed plaintiff immunosuppressant 9 medications. 10 Plaintiff requested emergency medical attention seven times over the next six months 11 before he was hospitalized. During this time, three Jane Doe nurses allegedly refused to send 12 plaintiff to the hospital and tried to make him walk back to his housing unit, even though plaintiff 13 was in extreme pain and could not walk. Plaintiff claims that he fainted, but the nurses still 14 refused to send him to the hospital. 15 Drs. Rudis and Matharu also allegedly refused to send plaintiff to the hospital, refused to 16 order MRIs, and prescribed plaintiff psychotropic medication for pain management even though 17 this was “not allowed” due to plaintiff’s depression diagnosis. Nurses Perez and Clark-Barlow 18 also repeatedly refused to send plaintiff to the hospital despite his obvious injuries, refused him 19 unspecified ADA accommodations, and laughed at his inability to walk and stand up straight. 20 On February 22, 2018, plaintiff was seen by the Institutional Classification Committee, 21 chaired by defendant Burton, who was “acting on behalf of Warden Lizarraga.” Plaintiff and 22 psychologist Ponder told the committee that it would be detrimental to plaintiff’s health and back 23 injury to transfer plaintiff to another prison, but Burton decided to transfer plaintiff to CSP-Sac (a 24 transfer which apparently never happened). Burton allegedly said he did not care if the transfer 25 would damage plaintiff, just so long as plaintiff was no longer housed in Burton’s facility. 26 Plaintiff says that he was sent to U.C. Davis Medical Center on February 26, 2018, where 27 care providers discovered extreme injuries to his spine and an infection that had been exacerbated 28 by the immunosuppressants prescribed by Dr. Matharu and had caused further significant injury. 1 When plaintiff returned to the prison, Dr. Smith discontinued the pain medications he had been 2 prescribed at the hospital and replaced them with Tylenol 3 and Gabapentin even though he knew 3 that plaintiff suffered from hepatitis C. 4 On April 9, 2018, Dr. Matharu allegedly threatened to transfer plaintiff to another prison if 5 plaintiff did not agree to discontinue his narcotic medications. Plaintiff says that he refused, and 6 5-6 days later he was informed by his correctional counselor that his doctor had changed 7 something in his chart that forced her to do an emergency transfer of plaintiff to a level 4 8 institution, Salinas Valley State Prison. A nurse allegedly told plaintiff that Matharu would 9 change the chart back only if plaintiff agreed to discontinue his narcotic medications. 10 Plaintiff claims that Dr. Smith retaliated against plaintiff for filing healthcare grievances 11 by refusing to approve all medical treatments which required his approval (such as pain 12 medications, orthopedic shoes, and insoles). Smith also used confidential information from 13 plaintiff’s central file to deny plaintiff a necessary reconstructive surgery on his spine. Due to 14 Smith’s conduct, plaintiff must submit to urinalysis for six months before he can obtain the 15 surgery. Plaintiff asserts that he complained to Dr. Bal about Smith’s conduct but Bal did 16 nothing. 17 Plaintiff alleges that he wrote to J. Clark-Kelso, federal receiver for California’s prison 18 medical care system, and told him of the deficient care he was receiving at Mule Creek State 19 Prison, but Kelso refused to intercede. Plaintiff adds that Kelso, along with former governor 20 Jerry Brown and current governor Gavin Newsom, know that the healthcare at MCSP is deficient, 21 but they have done nothing to fix the issues that caused plaintiff’s injuries. Plaintiff also asserts 22 that Ralph Diaz, as secretary of CDCR, is required to ensure proper compliance with laws and 23 regulations by his subordinates but did not do so. 24 Plaintiff alleges that, by the foregoing acts and omissions, the defendants violated his 25 Eighth Amendment rights. 26 C. Analysis 27 Plaintiff has failed to state a cognizable claim against defendants Gavin Newsom, Jerry 28 Brown, and Joe Lizarraga. To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an 1 actual connection or link between the actions of the named defendants and the alleged 2 deprivations. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691-93 (1978). “A person 3 ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 1983, if he 4 does an affirmative act, participates in another’s affirmative acts, or omits to perform an act 5 which he is legally required to do that causes the deprivation of which complaint is made.” 6 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 7 concerning the involvement of official personnel in civil rights violations are not sufficient to 8 state a cognizable claim. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 9 Supervisory personnel are generally not liable under § 1983 for the actions of their 10 employees. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“There is no respondeat superior 11 liability under § 1983.”). A supervisor is only liable for the constitutional violations of 12 subordinates if the supervisor participated in or directed the violations, or had actual knowledge 13 of the violations and failed to act to prevent them. Id. 14 The complaint contains vague allegations that Newsom and Brown knew that healthcare 15 at MCSP was deficient but did nothing to fix the issues that led to plaintiff’s injury. It contains 16 no facts showing that Newsom and Brown actually knew of the failures of MCSP staff to address 17 his health care needs or that they participated in or directed these failures. Plaintiff similarly 18 vaguely alleges that Diaz, as secretary of CDCR, must ensure compliance with laws by his 19 subordinates but did not do so. The complaint does not include facts showing that Diaz knew of 20 his subordinates’ unconstitutional conduct, participated in it, or directed it. As to Lizarraga, 21 plaintiff seeks to impose supervisor liability on him because R. Burton “acted on his behalf.” 22 This allegation again fails to show Lizarraga’s personal involvement. Accordingly, the claims 23 against Newsom, Brown, Diaz, and Lizarraga must be dismissed with leave to amend. 24 The complaint also fails to state a viable claim against defendant Kelso. “Under federal 25 law, court-appointed ‘receivers are court officers who share the immunity awarded to judges.’” 26 Alta Gold Mining Co. v. Aero-Nautical Leasing Corp., 656 Fed. Appx. 316, 318 (9th Cir. 2016) 27 (quoting New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1303 (9th Cir. 1989)). “Receivers 28 ///// 1 are thus entitled to absolute immunity unless their acts are clearly beyond their jurisdiction or not 2 judicial in nature.” Id. 3 Courts have routinely held that Kelso is entitled to quasi-judicial immunity and, on this 4 basis, prisoner civil rights claims against him must be dismissed. Patterson v. Kelso, 698 F. 5 App’x 393, 394 (9th Cir. 2017) (citing Stump v. Sparkman, 435 U.S. 349, 355-56 (1978) 6 (explaining doctrine of judicial immunity); and Mosher v. Saalfeld, 589 F.2d 438, 442 (9th Cir. 7 1978) (judicial immunity extends to court-appointed receivers)); Mwasi v. Corcoran State Prison, 8 No. 1:13-cv-00695-DAD-JLT (PC), 2016 U.S. Dist. LEXIS 67611, *11-13 (E.D. Cal. May 20, 9 2016); Griffin v. Kelso, No. 2:10-cv-2525 MCE JFM (PC), 2011 U.S. Dist. LEXIS 90475, at *9- 10 12 (E.D. Cal. Aug. 15, 2011). Plaintiff does not and could not plausibly allege that Kelso acted 11 outside the scope of his jurisdiction or responsibilities in deciding not to intercede in plaintiff’s 12 case. Accordingly, J. Clark Kelso must be dismissed from this action with prejudice. Plaintiff 13 should omit his claim against Kelso from any amended complaint he may file, as Kelso is 14 immune. 15 Plaintiff’s claim against Paul Covello must be dismissed with leave to amend because the 16 complaint contains no allegations against Covello. 17 For purposes of § 1915A screening only, and liberally construed, the complaint states 18 potentially cognizable Eighth Amendment claims against defendants Hernandez, Bentz, Smith, 19 Matharu, Rudis, Perez, Bal, Oania, Clark-Barlow, and the three unidentified nurses (Jane Does 1- 20 3).1 21 Plaintiff has not stated cognizable Eighth Amendment claims against defendant Burton. 22 To succeed on an Eighth Amendment claim predicated on allegedly deficient medical care, a 23 plaintiff must establish that: (1) he had a serious medical need and (2) the defendant’s response to 24 that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see 25 also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to 26
27 1 Because the court cannot direct service on these defendants until plaintiff discovers their identities, the court will not order service on the Doe defendants until plaintiff has identified them 28 and filed a motion to amend to substitute named defendants for the Doe defendants. 1 treat the condition could result in further significant injury or the unnecessary and wanton 2 infliction of pain. Jett, 439 F.3d at 1096. A deliberately indifferent response may be shown by 3 the denial, delay or intentional interference with medical treatment or by the way in which 4 medical care was provided. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). To 5 act with deliberate indifference, a prison official must both be aware of facts from which the 6 inference could be drawn that a substantial risk of serious harm exists, and he must also draw the 7 inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). 8 Thus, a defendant will be liable for violating the Eighth Amendment if he knows that 9 plaintiff faces “a substantial risk of serious harm and disregards that risk by failing to take 10 reasonable measures to abate it.” Id. at 847. “[I]t is enough that the official acted or failed to act 11 despite his knowledge of a substantial risk of serious harm.” Id. at 842. Importantly, the 12 indifference to medical needs must be substantial; mere malpractice, or even gross negligence, 13 does not constitute cruel and unusual punishment. Estelle, 429 U.S. at 106. 14 Plaintiff alleges that Burton stated that he would transfer plaintiff to CSP-Sacramento 15 despite having been informed that the transfer would be detrimental to plaintiff’s health and back 16 injury. But the complaint does not contain facts showing that this transfer actually occurred. 17 Thus, plaintiff has failed to state facts showing that Burton disregarded the risk to plaintiff’s 18 health by transferring him despite that risk. Accordingly, the claim against Burton must be 19 dismissed with leave to amend. 20 Although plaintiff has not clearly articulated his intent to include a retaliation claim in his 21 amended complaint, he plainly suggests one and has stated facts sufficient for screening purposes 22 to state potentially cognizable claims against defendants Smith and Matharu for retaliating against 23 him in violation of the First Amendment. 24 Plaintiff may proceed with his potentially cognizable Eighth Amendment claims against 25 defendants Smith, Bal, Hernandez, Bentz, Matharu, Rudis, Oania, Jane Does 1-3, Perez, and 26 Clark-Barlow and his potentially cognizable First Amendment retaliation claims against 27 defendants Smith and Matharu, or he can file a second amended complaint to attempt to cure the 28 deficiencies in his claims against other defendants. 1 If plaintiff elects to file a second amended complaint, that pleading must identify as a 2 defendant only persons who personally participated in a substantial way in depriving him of a 3 federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person 4 subjects another to the deprivation of a constitutional right if he does an act, participates in 5 another’s act or omits to perform an act he is legally required to do that causes the alleged 6 deprivation). 7 Plaintiff may not change the nature of this suit by alleging new, unrelated claims in the 8 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 9 Any amended complaint must be written or typed so that it so that it is complete in itself 10 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 11 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 12 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 13 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 14 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 15 1967)). 16 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 17 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 18 See E.D. Cal. L.R. 110. 19 II. Order 20 For the foregoing reasons, it is HEREBY ORDERED that: 21 1. Plaintiff’s amended complaint alleges, for screening purposes, viable: (1) Eighth 22 Amendment deliberate indifference claims against defendants Smith, Bal, 23 Hernandez, Bentz, Matharu, Rudis, Oania, Jane Does 1-3, Perez, and Clark- 24 Barlow and (2) First Amendment retaliation claims against defendants Smith and 25 Matharu. 26 ///// 27 ///// 28 ///// wOAOe VV ETB UETOCTI AY PIR MEIN ayy VT LY
1 2. All other claims are dismissed with leave to amend within 30 days of service of 2 this order, with the exception of plaintiffs claim against defendant Kelso, which is 3 dismissed without leave to amend. Plaintiff is not obligated to amend his 4 complaint. 5 3. Within thirty days plaintiff shall return the notice below advising the court whether 6 he elects to proceed with the cognizable claims or file an amended complaint. If 7 the former option is selected and returned, the court will enter an order directing 8 service at that time; 9 4. Failure to comply with any part of this this order may result in dismissal of this 10 action. 11 | DATED: July 6, 2020. tid, PDEA 12 EDMUND F. BRENNAN B UNITED STATES MAGISTRATE JUDGE
14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HERSHEL WAYNE CASTO, II, No. 2:19-cv-2209-EFB P 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 GAVIN NEWSOM, et al., 15 Defendants. 16 17 In accordance with the court’s Screening Order, plaintiff hereby elects to: 18 (1) ______ proceed only with the Eighth Amendment claims against defendants Smith, 19 Bal, Hernandez, Bentz, Matharu, Rudis, Oania, Jane Does 1-3, Perez, and Clark-Barlow and the 20 First Amendment retaliation claims against defendants Matharu and Smith; 21 22 OR 23 (2) ______ delay serving any defendant and file an amended complaint. 24 25 _________________________________ 26 Plaintiff 27 Dated: 28