1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARYL HICKS, No. 2:22-cv-0903 KJN P 12 Plaintiff, 13 v. ORDER 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 18 42 U.S.C. § 1983, and is proceeding in forma pauperis. Plaintiff’s second amended complaint is 19 before the court. As discussed below, plaintiff is granted the option of pursuing his Eighth 20 Amendment claims against defendants Powell and Dr. Pleshchuk, or plaintiff may elect to amend 21 again and delay service of process on any defendant. 22 Screening 23 The undersigned screened plaintiff’s second amended complaint and determined that 24 plaintiff states potentially cognizable Eighth Amendment claims against defendants Powell and 25 Dr Pleshchuk. Plaintiff may proceed forthwith to serve defendants Powell and Dr. Pleshchuk and 26 pursue Eighth Amendment claims against them or may delay serving any defendant and attempt 27 to state cognizable Eighth Amendment claims against defendant Dr. Kim and defendant Costa. 28 //// 1 Claims Not Cognizable 2 Retaliation 3 In his first claim, plaintiff marked the box “retaliation.” 4 “Prisoners have a First Amendment right to file grievances against prison officials and to 5 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 6 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A viable retaliation claim in the 7 prison context has five elements: “(1) An assertion that a state actor took some adverse action 8 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 9 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 10 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 11 2005). 12 Here, plaintiff does not allege that a particular defendant took an adverse action against 13 plaintiff based on plaintiff’s conduct protected under the First Amendment. Liberally construing 14 plaintiff’s allegations contained in his second amended complaint, plaintiff fails to allege facts 15 meeting all of the elements of a retaliation claim. Indeed, plaintiff fails to identify any conduct 16 protected under the First Amendment that might have triggered the alleged actions or omissions 17 and did not address the fourth or fifth elements of a putative retaliation claim. Plaintiff fails to 18 state a cognizable retaliation claim. 19 Eighth Amendment 20 In his second claim, plaintiff marked the box “threat to safety.” However, the undersigned 21 construes plaintiff’s claims as alleging that defendants Powell, Dr. Pleshchuk and Dr. Kim were 22 deliberately indifferent to plaintiff’s serious mental health needs. 23 To state a viable claim of deliberate indifference to a serious medical need, a plaintiff 24 must show that (1) a serious medical need exists, and (2) defendant’s response was deliberately 25 indifferent. Serious medical need can be shown by demonstrating that a failure to treat a prisoner 26 could result in significant injury or worsening pain. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 27 2006). A deliberately indifferent response can be shown by a purposeful act or failure to respond 28 to a prisoner’s pain or possible medical need coupled with harm caused by that indifference. Id. 1 Moreover, in order to state a § 1983 claim, a plaintiff must show each defendant “[performed] an 2 affirmative act, participate[d] in another’s affirmative acts, or omit[ted] to perform an act which 3 he is legally required to do that causes the deprivation of which [the plaintiff complains].” 4 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 5 As discussed above, the undersigned finds plaintiff stated potentially cognizable Eighth 6 Amendment claims as to defendants Powell and Dr. Pleshchuk. Defendant Powell’s deliberate 7 indifference is demonstrated by Powell’s statement to plaintiff that Powell “doesn’t work against 8 his constituents.” (ECF No. 16 at 4.) Liberally construed, plaintiff alleges both defendants were 9 determined to remove plaintiff from EOP, despite his demonstrated need for such mental health 10 care. In addition to his suicide attempt, plaintiff continues to have a nervous condition that causes 11 him to shake uncontrollably and now suffers urinary incontinence. (ECF No. 16 at 4.) 12 On the other hand, plaintiff’s allegations as to Dr. Kim fail to demonstrate Dr. Kim acted 13 with a culpable state of mind for the following reasons. 14 Plaintiff references a failed overdose attempt on his part. However, plaintiff attributes his 15 attempt to the actions and omissions of defendant Powell, and it is not clear whether plaintiff 16 attempted to overdose prior to Dr. Kim adjusting plaintiff’s medications, or after. 17 Further, plaintiff alleges that Dr. Kim claimed plaintiff had not taken his medication and 18 began to change the dose and type of medications. (ECF No. 16 at 5.) On at least two occasions, 19 Dr. Kim denied plaintiff his mental health medications causing withdrawals, seizures, PTSD and 20 panic attacks. Dr. Kim stopped plaintiff’s Ephexor prescription for two weeks, again causing 21 withdrawals. During plaintiff’s committee meeting, Dr. Kim claimed it was a mistake and would 22 resume the medication. (ECF No. 16 at 5.) 23 The Supreme Court established a very demanding standard for deliberate indifference; 24 and negligence is insufficient. Farmer, 511 U.S. at 835. It is not enough that a reasonable person 25 would have known of the risk or that a defendant should have known of the risk. Id. at 842. 26 Rather, deliberate indifference is established only where the defendant subjectively “knows of 27 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 28 1057 (9th Cir. 2004) (internal citation omitted). A difference of opinion between an inmate and 1 prison medical personnel, or between medical professionals, regarding appropriate medical 2 diagnosis and treatment is also not enough to establish a deliberate indifference claim. Sanchez v. 3 Vild, 891 F.2d 240, 242 (9th Cir. 1989); Toguchi, 391 F.3d at 1058. Moreover, even medical 4 malpractice or “gross negligence” does not by itself establish deliberate indifference to serious 5 medical needs. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 6 Thus, plaintiff’s allegation that Dr. Kim made a mistake in discontinuing the Ephexor 7 prescription is negligence, and, without more, does not rise to the level of deliberate indifference. 8 Further, a patient is not entitled to request a prescription for a specific medication, and a 9 doctor’s refusal to comply with such a request does not amount to an Eighth Amendment 10 violation. See Arellano v. Sedighi, 2020 WL 5877832, at *18 (S.D. Cal. Oct. 1, 2020), adopting 11 report and recommendation, 2021 WL 7711170 (S.D. Cal. May 7, 2021); Tucker v. Daszko, 2017 12 WL 4340090, at *3 (E.D. Cal. Sep. 29, 2017) (citing cases). The fact that Dr. Kim changed 13 plaintiff’s medications is insufficient, standing alone, to demonstrate Dr. Kim acted with a 14 culpable state of mind.
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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 DARYL HICKS, No. 2:22-cv-0903 KJN P 12 Plaintiff, 13 v. ORDER 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel. Plaintiff seeks relief pursuant to 18 42 U.S.C. § 1983, and is proceeding in forma pauperis. Plaintiff’s second amended complaint is 19 before the court. As discussed below, plaintiff is granted the option of pursuing his Eighth 20 Amendment claims against defendants Powell and Dr. Pleshchuk, or plaintiff may elect to amend 21 again and delay service of process on any defendant. 22 Screening 23 The undersigned screened plaintiff’s second amended complaint and determined that 24 plaintiff states potentially cognizable Eighth Amendment claims against defendants Powell and 25 Dr Pleshchuk. Plaintiff may proceed forthwith to serve defendants Powell and Dr. Pleshchuk and 26 pursue Eighth Amendment claims against them or may delay serving any defendant and attempt 27 to state cognizable Eighth Amendment claims against defendant Dr. Kim and defendant Costa. 28 //// 1 Claims Not Cognizable 2 Retaliation 3 In his first claim, plaintiff marked the box “retaliation.” 4 “Prisoners have a First Amendment right to file grievances against prison officials and to 5 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 6 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). A viable retaliation claim in the 7 prison context has five elements: “(1) An assertion that a state actor took some adverse action 8 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 9 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 10 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 11 2005). 12 Here, plaintiff does not allege that a particular defendant took an adverse action against 13 plaintiff based on plaintiff’s conduct protected under the First Amendment. Liberally construing 14 plaintiff’s allegations contained in his second amended complaint, plaintiff fails to allege facts 15 meeting all of the elements of a retaliation claim. Indeed, plaintiff fails to identify any conduct 16 protected under the First Amendment that might have triggered the alleged actions or omissions 17 and did not address the fourth or fifth elements of a putative retaliation claim. Plaintiff fails to 18 state a cognizable retaliation claim. 19 Eighth Amendment 20 In his second claim, plaintiff marked the box “threat to safety.” However, the undersigned 21 construes plaintiff’s claims as alleging that defendants Powell, Dr. Pleshchuk and Dr. Kim were 22 deliberately indifferent to plaintiff’s serious mental health needs. 23 To state a viable claim of deliberate indifference to a serious medical need, a plaintiff 24 must show that (1) a serious medical need exists, and (2) defendant’s response was deliberately 25 indifferent. Serious medical need can be shown by demonstrating that a failure to treat a prisoner 26 could result in significant injury or worsening pain. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 27 2006). A deliberately indifferent response can be shown by a purposeful act or failure to respond 28 to a prisoner’s pain or possible medical need coupled with harm caused by that indifference. Id. 1 Moreover, in order to state a § 1983 claim, a plaintiff must show each defendant “[performed] an 2 affirmative act, participate[d] in another’s affirmative acts, or omit[ted] to perform an act which 3 he is legally required to do that causes the deprivation of which [the plaintiff complains].” 4 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 5 As discussed above, the undersigned finds plaintiff stated potentially cognizable Eighth 6 Amendment claims as to defendants Powell and Dr. Pleshchuk. Defendant Powell’s deliberate 7 indifference is demonstrated by Powell’s statement to plaintiff that Powell “doesn’t work against 8 his constituents.” (ECF No. 16 at 4.) Liberally construed, plaintiff alleges both defendants were 9 determined to remove plaintiff from EOP, despite his demonstrated need for such mental health 10 care. In addition to his suicide attempt, plaintiff continues to have a nervous condition that causes 11 him to shake uncontrollably and now suffers urinary incontinence. (ECF No. 16 at 4.) 12 On the other hand, plaintiff’s allegations as to Dr. Kim fail to demonstrate Dr. Kim acted 13 with a culpable state of mind for the following reasons. 14 Plaintiff references a failed overdose attempt on his part. However, plaintiff attributes his 15 attempt to the actions and omissions of defendant Powell, and it is not clear whether plaintiff 16 attempted to overdose prior to Dr. Kim adjusting plaintiff’s medications, or after. 17 Further, plaintiff alleges that Dr. Kim claimed plaintiff had not taken his medication and 18 began to change the dose and type of medications. (ECF No. 16 at 5.) On at least two occasions, 19 Dr. Kim denied plaintiff his mental health medications causing withdrawals, seizures, PTSD and 20 panic attacks. Dr. Kim stopped plaintiff’s Ephexor prescription for two weeks, again causing 21 withdrawals. During plaintiff’s committee meeting, Dr. Kim claimed it was a mistake and would 22 resume the medication. (ECF No. 16 at 5.) 23 The Supreme Court established a very demanding standard for deliberate indifference; 24 and negligence is insufficient. Farmer, 511 U.S. at 835. It is not enough that a reasonable person 25 would have known of the risk or that a defendant should have known of the risk. Id. at 842. 26 Rather, deliberate indifference is established only where the defendant subjectively “knows of 27 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 28 1057 (9th Cir. 2004) (internal citation omitted). A difference of opinion between an inmate and 1 prison medical personnel, or between medical professionals, regarding appropriate medical 2 diagnosis and treatment is also not enough to establish a deliberate indifference claim. Sanchez v. 3 Vild, 891 F.2d 240, 242 (9th Cir. 1989); Toguchi, 391 F.3d at 1058. Moreover, even medical 4 malpractice or “gross negligence” does not by itself establish deliberate indifference to serious 5 medical needs. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 6 Thus, plaintiff’s allegation that Dr. Kim made a mistake in discontinuing the Ephexor 7 prescription is negligence, and, without more, does not rise to the level of deliberate indifference. 8 Further, a patient is not entitled to request a prescription for a specific medication, and a 9 doctor’s refusal to comply with such a request does not amount to an Eighth Amendment 10 violation. See Arellano v. Sedighi, 2020 WL 5877832, at *18 (S.D. Cal. Oct. 1, 2020), adopting 11 report and recommendation, 2021 WL 7711170 (S.D. Cal. May 7, 2021); Tucker v. Daszko, 2017 12 WL 4340090, at *3 (E.D. Cal. Sep. 29, 2017) (citing cases). The fact that Dr. Kim changed 13 plaintiff’s medications is insufficient, standing alone, to demonstrate Dr. Kim acted with a 14 culpable state of mind. Simply showing that a course of treatment proves to be ineffective, 15 without demonstrating that the medical professional’s conduct was medically unacceptable under 16 the circumstances and chosen in conscious disregard to plaintiff’s health, also does not establish a 17 claim for deliberate indifference. Nicholson v. Finander, 2014 WL 1407828, at *9 (C.D. Cal. 18 2014) (citing Estelle v. Gamble, 429 U.S. 97, 105 (1976); Toguchi, 391 F.3d at 1058). 19 Based on plaintiff’s current allegations, as well as his prior attempts to amend, it is unclear 20 plaintiff can allege additional facts to state a cognizable Eighth Amendment claim as to Dr. Kim. 21 However, plaintiff may elect to amend in an effort to do so. 22 Defendant Costa 23 The undersigned finds plaintiff’s allegations as to Correctional Counselor Costa are too 24 vague and conclusory to determine whether plaintiff can state a cognizable civil rights claim. In 25 claim three, plaintiff marked medical care and disciplinary proceedings, but plaintiff alleges no 26 facts tying defendant Costa to plaintiff’s medical care. Similarly, plaintiff cites to no specific 27 disciplinary proceeding and does not allege that defendant Costa was involved in any disciplinary 28 proceeding against plaintiff. 1 Rather, in claim three, plaintiff alleges the following: 2 CCII Costa refused to transfer [plaintiff]. ]Plaintiff] was endorsed for months before [he] was physically assaulted by inmates and then 3 by an officer. Because of her supervisory level, and having seen for years her subordinates misuse and mistreat [plaintiff], [Costa] could 4 have and should have allowed [plaintiff] to be transferred. So during the committee meeting, [plaintiff] was informed that [he] had been 5 endorsed to be transferred. But because [plaintiff] had expressed fear for [his] life on the B yard where [he] had been stalked and beaten, 6 CCII Costa demanded [plaintiff] wait on the Level IV A yard. So instead of transferring [plaintiff] from administrative segregation to 7 RJD, [plaintiff] was made to wait on the A yard . . . where one of the officers who had issued to [plaintiff] more than five rules violation 8 reports which each violated [plaintiff’s] due process rights. They raised [plaintiff’s] security level which CCI Costa witnessed most 9 and could or should have all. The officer Gosai [was] working in the control booth had worked in the building [plaintiff] was transferred 10 from, had sexually assaulted plaintiff, directed inmates physically to assault plaintiff, and now [plaintiff] was being placed in a situation 11 which could easily . . . cost plaintiff [his] life. 12 (ECF No. 16 at 5.)1 13 Inmates do not have a constitutional right to be housed at a particular facility or institution 14 or to be transferred, or not transferred, from one facility or institution to another. Olim v. 15 Wakinekona, 461 U.S. 238, 244-48 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); 16 Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam). An inmate does not have a 17 constitutional right to any particular classification. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) 18 (“[P]etitioner has no legitimate statutory or constitutional entitlement sufficient to invoke due 19 process.”); Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987) (citations omitted). Nor 20 do inmates have a right to be housed in a particular part of a prison. See Grayson v. Rison, 945 21 F.2d 1064, 1067 (9th Cir. 1991) (prisoner had “no ‘justifiable expectation’ of being anywhere but 22 in administrative detention,” and his “placement was left to the discretion of prison officials.”). 23 Furthermore, inmates have no Eighth Amendment right to be housed in a manner that avoids 24 confrontation. Atiyeh v. Capps, 449 U.S. 1312, 1315-16 (1981). 25
1 In a separate lawsuit, plaintiff challenges Officer Gosai’s actions, as well as fellow officer 26 Rammi. Hicks v. Gosai, case No. 2:20-cv-2303 DJC JDP P (E.D. Cal.). Although plaintiff 27 marked “disciplinary proceedings” in claim three and generally refers to rules violation reports in the second amended complaint, plaintiff does not challenge a particular rules violation report in 28 his amended pleading. (ECF No. 16, passim.) 1 Plaintiff appears to contend defendant Costa should have allowed plaintiff to be 2 transferred before plaintiff was beaten on Yard A. But such conclusory claim, without more, is 3 insufficient. Next, plaintiff’s claim that defendant Costa refused to transfer plaintiff directly from 4 administrative segregation to RJD also fails. 5 As set forth above, plaintiff does not have a constitutional right to be transferred to a 6 particular prison. Olim, 461 U.S. at 244-48. Further, to state a cognizable Eighth Amendment 7 claim on a failure to protect theory, a prisoner must reasonably allege that the named defendant 8 knew of but disregarded an excessive risk to plaintiff’s health or safety. Farmer, 511 U.S. at 837. 9 There must be evidence which shows that a defendant acted with a “sufficiently culpable state of 10 mind.” Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005). “[T]he official must both be 11 aware of facts from which the inference could be drawn that a substantial risk of serious harm 12 exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. “[I]t is enough that the 13 official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 14 842 (citations omitted). 15 Here, plaintiff alleges that defendant Costa demanded plaintiff must wait on Yard A 16 because plaintiff had expressed fear for his life if returned to B yard. Such allegation does not 17 demonstrate that defendant Costa acted with a culpable state of mind. Moreover, despite 18 plaintiff’s concern based on the Yard A work assignments of Officer Gosai and the unidentified 19 officer who previously cited plaintiff on multiple occasions, plaintiff sets forth no specific facts 20 demonstrating that their assignment to Yard A posed a substantial risk of harm to plaintiff. 21 Indeed, while plaintiff was required to remain housed on Yard A pending transfer, he was 22 subsequently transferred to California State Prison, Los Angeles County on or before October 26, 23 2022, and despite twice amending his pleading thereafter, plaintiff alleges no further incidents on 24 Yard A. (ECF Nos. 11, 12.) 25 In his fourth claim, plaintiff appears to contend that defendant Costa did nothing after 26 plaintiff complained that other officers were prolonging plaintiff’s sentence. However, plaintiff 27 fails to allege facts demonstrating what actions Costa could have taken given plaintiff’s 28 disciplinary findings. Plaintiff’s fourth claim is too vague and conclusory to state a cognizable 1 civil rights claim. Finally, to the extent plaintiff attempts to hold defendant Costa responsible for 2 the actions or omissions of Costa’s subordinates, such claim fails. Supervisory personnel are 3 generally not liable under § 1983 for the actions of their employees under a theory of respondeat 4 superior and, therefore, when a named defendant holds a supervisorial position, the causal link 5 between such defendant and the claimed constitutional violation must be specifically alleged. See 6 Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th 7 Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the 8 involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of 9 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 10 While it is unclear plaintiff can amend his pleading to state a cognizable claim as to 11 defendant Costa, plaintiff is granted leave to attempt to do so. Plaintiff is cautioned that he must 12 demonstrate any putative claim as to defendant Costa is related to plaintiff’s Eighth Amendment 13 claims against defendants Powell and Dr. Pleshchuk. Otherwise, such claim or claims must be 14 raised in a separate action. (ECF Nos. 8 at 14-15; 15 at 5-6.) 15 Plaintiff’s Options 16 If plaintiff elects to attempt to amend the complaint to state a cognizable civil rights 17 claims against defendants Dr. Kim and Costa, plaintiff has thirty days in which to do so. Plaintiff 18 is not obligated to amend. 19 If plaintiff elects to proceed forthwith against defendants Powell and Dr. Pleshchuk, 20 against whom potentially cognizable Eighth Amendment claims for relief are stated, then within 21 thirty days plaintiff must so elect on the appended form. In this event the court will construe 22 plaintiff’s election as consent to dismissal of plaintiff’s retaliation claim against defendants, and 23 the remaining claims against defendants Dr. Kim and Costa without prejudice. 24 Leave to Amend 25 Plaintiff is advised that any third amended complaint must clearly identify each defendant 26 and the action that defendant took that violated constitutional rights. The charging allegations 27 must be set forth in the third amended complaint so defendants have fair notice of the claims 28 plaintiff is presenting. 1 Any third amended complaint must show the federal court has jurisdiction, the action is 2 brought in the right place, and plaintiff is entitled to relief if plaintiff’s allegations are true. It 3 must contain a request for particular relief. Plaintiff must identify as a defendant only persons 4 who personally participated in a substantial way in depriving plaintiff of a federal constitutional 5 right. Johnson v. Duffy, 588 F.2d at 743 (a person subjects another to the deprivation of a 6 constitutional right if he does an act, participates in another’s act or omits to perform an act he is 7 legally required to do that causes the alleged deprivation). 8 A district court must construe a pro se pleading “liberally” to determine if it states a claim 9 and, prior to dismissal, tell a plaintiff of deficiencies in the complaint and give plaintiff an 10 opportunity to cure them. See Lopez, 203 F.3d at 1130-31. While detailed factual allegations are 11 not required, “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 13 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 14 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft, 556 15 U.S. at 678 (quoting Bell Atlantic Corp., 550 U.S. at 570). 16 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 17 defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for 18 more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a 19 defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. 20 21 Ashcroft, 556 U.S. at 678 (citations and quotation marks omitted). Although legal conclusions 22 can provide the framework of a complaint, they must be supported by factual allegations, and are 23 not entitled to the assumption of truth. Id. at 1950. 24 An amended complaint must be complete in itself without reference to any prior pleading. 25 Local Rule 220; See Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) 26 (“an ‘amended complaint supersedes the original, the latter being treated thereafter as non- 27 existent.’” (internal citation omitted)). Once plaintiff files a third amended complaint, the 28 original pleading is superseded. ] Finally, plaintiff is not granted leave to add new claims or new defendants to this action. 2 || Rather, plaintiff is granted leave to amend solely as to plaintiff's Eighth Amendment claims 3 || against defendant Dr. Kim, or any related Eighth Amendment claim for relief as to defendant 4 || Costa. 5 In accordance with the above, IT IS HEREBY ORDERED that: 6 1. Plaintiff's Eighth Amendment claims as to defendants Dr. Kim and Costa are 7 || dismissed with leave to amend. Within thirty days of service of this order, plaintiff may amend 8 | his pleading to attempt to state cognizable Eighth Amendment claims against defendant Dr. Kim 9 || and defendant Costa. Plaintiff is not required to amend his pleading. 10 2. The allegations in the second amended complaint are sufficient to state potentially 11 | cognizable Eighth Amendment claims against defendants Powell and Dr. Pleshchuk. See 28 12 | US.C.§ 1915A. If plaintiff chooses to proceed solely as to such Eighth Amendment claims, 13 | plaintiff shall so indicate on the attached form and return it to the court within thirty days from 14 || the date of this order. In this event, the court will construe plaintiff's election to proceed 15 || forthwith as consent to an order dismissing the defective claims without prejudice. 16 3. Failure to comply with this order will result in a recommendation that this action will 17 || proceed solely on plaintiff's Eighth Amendment claims against defendants Powell and Dr. 18 || Pleshchuk, and the retaliation claim and plaintiff's remaining claims against defendants Dr. Kim 19 || and Costa be dismissed without prejudice. 20 | Dated: October 16, 2023 Aectl Aharon 22 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 23 24 /robil640.140 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 DARYL ANTHONY HICKS, No. 2:22-cv-0903 KJN P 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 18 Plaintiff elects to proceed as follows:
19 ______ Plaintiff opts to proceed with his Eighth Amendment claims against 20 defendants Powell and Dr. Pleshchuk.
21 ______ Plaintiff consents to dismissal of his retaliation claim, and dismissal of his putative Eighth Amendment claims against defendant Dr. Kim and 22 defendant Costa without prejudice.
23 OR
24 _____ Plaintiff opts to file a third amended complaint and delay service of process. 25 DATED: 26
27 Plaintiff 28