(PC) Quezada v. Akabike

Opinion

ALVARO QUEZADA, Case No. 1:18-cv-00797-DAD-JLT (PC)

Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT IN PART AND DENY IN PART v. DEFENDANTS’ MOTION TO DISMISS

AKABIKE, et al., (Doc. 41)

Defendants. 21-DAY DEADLINE

Before the Court is Defendants’ motion to dismiss Plaintiff’s third amended complaint. (Doc. 41.) For the reasons set forth below, the Court recommends that the motion be granted in part and denied in part. A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In resolving a Rule 12(b)(6) motion, the Court’s review is generally limited to the “allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030-31 (9th Cir. 2008) (internal quotation marks and citations omitted). Dismissal is proper if there is a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (citation omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court “accept[s] as true all well-pleaded allegations of material fact, and construe[s] them in the light most favorable to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (citation omitted). In addition, the Court construes pleadings of pro se prisoners liberally and affords them the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal theories. Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). At the times relevant to this case, Plaintiff was incarcerated at Substance Abuse Treatment Facility and State Prison, Corcoran (SATF). (See generally Doc. 29.) While at SATF, Plaintiff suffered from degenerative disc disease and stenosis, which caused him back pain and affected his “ability to walk, stand, and . . . sit down for prolong[ed] periods” of time. (Id. at 7-8.) In 2017, over the span of several months, Plaintiff repeatedly requested that his medical file be updated to reflect his medical condition and disability; but Dr. Akabike refused. (Id.) As a result, prison officials assigned Plaintiff to a dining hall job and “top-tier” housing, both of which were inappropriate for his condition. (Id.) Plaintiff alerted Dr. Akabike that he was unable to perform his work duties because of his disability. (Id. at 9.) After evaluating Plaintiff, Dr. Akabike refused to update Plaintiff’s medical file to reflect his disability, and she denied him adequate pain medication and treatment. (Id.) On June 28, 2017, Plaintiff fell twice while walking down the stairs from his top-tier cell. (Id. at 10.) Plaintiff fell because of his medical condition, which caused his “right leg to give out.” (Id.) After the falls, Dr. Akabike continued to refuse to update Plaintiff’s medical file and to adequately treat his pain, and she declined to provide him mobility accommodations such as a cane or wheelchair. (Id. at 10-11.) After Plaintiff fell the first time, Plaintiff’s cellmate (whom Plaintiff considered to be his Plaintiff be moved to a lower-tier bunk. (Id. at 14.) Harris and Correctional Officer Ceja “had firsthand knowledge of plaintiff’s severe medical conditions and disabilities” because they “observed plaintiff struggling to walk” every day, and they “witnessed [him] being assisted” by his cellmate. (Id.) After Plaintiff’s cellmate requested that he and Plaintiff be moved to a lower- tier cell, Harris and Ceja ordered the cellmate, who is able bodied, to move to a lower cell, but forced Plaintiff to remain at his top-tier cell. (Id. at 14-16.) Officers Harris and Ceja then “forced plaintiff” “to go down the stairs or else be punished.” (Id. at 15, 17.) While walking down the stairs, Plaintiff fell the second time, causing him to be “severely injured.” (Id. at 17.) Plaintiff yelled for medical assistance, but Ceja “walked over to the edge of the top tier and looked at plaintiff on the floor in serious pain, . . . stated . . . that plaintiff was ‘faking’ then waved off plaintiff and instructed the other [correctional officers] . . . to continue searching” his pod. (Id.) “Immediately after,” other inmates began yelling, “man down,” at which point Harris “ran into the dayroom and saw plaintiff on the floor . . . and . . . activated his alarm for a medical emergency response.” (Id.) Plaintiff was transferred to a hospital and treated for his injuries. Dr. Tung recommended surgery. (Id. at 18.) Plaintiff was eventually transferred to R.J. Donavan Correctional Facility (RJD), where he was “immediately provided” “proper pain treatment . . . and . . . an ADA appliance” for his disability. (Id. at 11-12.) The Court has screened Plaintiff’s third amended complaint pursuant to 28 U.S.C. § 1915A(a) and found it states cognizable claims of deliberate indifference to serious medical needs in violation of the Eighth Amendment. (Docs. 30, 36.) Plaintiff’s operative claims are based on the following sets of alleged facts: Claim 1: Dr. Akabike failed to properly treat Plaintiff for his degenerative disc disease and stenosis, including by refusing to update his medical file to reflect his condition and by failing to provide him proper medication and accommodations, which resulted in unnecessary pain and caused Plaintiff to fall twice while walking down the stairs. Claim 2: After Plaintiff fell the first time, Correctional Officers Ceja and Harris refused to move Plaintiff to a lower-tier cell and forced him to again walk down the stairs, causing him to fall the second time. Claim 3: After Plaintiff fell the second time, Correctional Officer Ceja refused to activate a medical emergency alarm. Defendants move to dismiss the third amended complaint on the grounds that (1) Plaintiff fails to plead a cognizable claim of deliberate indifference, and (2) Defendants are entitled to qualified immunity. (Doc. 41 at 1.) For the reasons set forth below, the Court finds that Plaintiff states cognizable claims with respect to Claims 1 and 2 but fails to state a cognizable claim with respect to Claim 3. The Court is unable to decide on the pleadings whether Defendants are entitled to qualified immunity due to disputes of fac; thus, it denies without prejudice Defendants’ motion to dismiss on qualified immunity grounds. A. Deliberate Indifference to Serious Medical Needs “Prison officials violate the Eighth Amendment if they are ‘deliberate[ly] indifferen[t] to [a prisoner’s] serious medical needs.’” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care. . .” Estelle, 429 U.S. at 104-05. “A medical need is serious if failure to treat it will result in significant injury or the unnecessary and wanton infliction of pain.” Peralta, 744 F.3d at 1081 (internal quotation marks and citations omitted). “A prison official is deliberately indifferent to that need if he ‘knows of and disregards an excessive risk to inmate health.’” Id. at 1082 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The test for deliberate indifference to medical needs is two-pronged and has objective and subjective components. See Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). To establish a deliberate-indifference claim, a prisoner must first “show a serious medical need by injury or the unnecessary and wanton infliction of pain. Second, the plaintiff must show the defendants’ response to the need was deliberately indifferent.” Id. (internal quotation marks and citation omitted). As to the first, objective prong, “[i]ndications that a plaintiff has a serious medical need include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.’” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation omitted). As to the second, subjective prong, deliberate indifference “describes a state of mind more blameworthy than negligence” and “requires more than ordinary lack of due care for the prisoner’s interests or safety.” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (internal quotation marks and citation omitted). Deliberate indifference exists where a prison official “knows that [an] inmate[ ] face[s] a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. In medical cases, this requires showing, “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citation omitted). “A prisoner need not show his harm was substantial; however, such would provide additional support for the inmate’s claim that the defendant was deliberately indifferent to his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citation omitted). “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but [he] ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “If a [prison official] should have been aware of the risk, but was not, then the [official] has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (internal quotation marks and citation omitted). i. Claim 1 In his complaint, Plaintiff alleges he suffered from degenerative disc disease and stenosis, of time. (Doc. 29 at 7-8.) These allegations satisfy the first, objective prong of a deliberate indifference claim. See Colwell, 763 F.3d at 1066. Defendants argue that Plaintiff fails to plead facts sufficient to satisfy the second, subjective prong with respect to Dr. Akabike. (See Doc. 41 at 10-11). The Court disagrees. Plaintiff alleges Dr. Akabike, after evaluating Plaintiff, refused to provide him proper pain medication or accommodations or to update his medical chart to reflect his condition. (Doc. 29 at 7-9.) Plaintiff further alleges that, after his condition caused him to fall twice while walking down the stairs, Dr. Akabike continued to deny him proper treatment or accommodations or to update his chart. (Id. at 10-11.) As soon as Plaintiff was transferred R.J. Donovan Correctional Facility, prison officials allegedly provided him proper treatment and accommodations. (Id. at 11-12.) Although, as Defendants point out (Doc. 41 at 10-11), a mere misdiagnosis or difference in medical opinion does not establish deliberate indifference, Estelle, 429 U.S. at 106, Toguchi, 391 F.3d at 1059-60, Plaintiff’s allegation regarding the difference in treatment at SATF and RJD at least supports his claim that Dr. Akabike was deliberately indifferent to his needs. According to Defendants, “Plaintiff only alleges a single instance when he was actually seen by Dr. Akabike before the alleged falls,” which occurred on May 11, 2017, and that this one evaluation is insufficient to show that the doctor was deliberately indifferent. (Doc. 41 at 11.) As an initial matter, Plaintiff also alleges that he “repeatedly informed” Dr. Akabike of his condition and the inaccuracy of his medical file, such as in writing. (Doc. 29 at 7-9.) Thus, liberally construing his allegations, Plaintiff alleges that Dr. Akabike’s actions or inactions were in response to more than just the May 11, 2017 visit. Second, Defendants point to no authority that establishes that a medical professional cannot be deliberately indifferent based on a single encounter. Clearly, if a person were to show up at an emergency room with an obviously life-threatening gunshot wound, and a doctor were to refuse to treat the person despite seeing the obvious injury, that one encounter would be enough to establish, at a minimum, deliberate indifference. In other words, whether the single encounter between Plaintiff and Dr. Akabike on May 11, 2017, is enough to establish deliberate indifference to properly treat his condition, despite knowing of that condition after evaluating him on May 11, 2017. This is a factual contention that the Court must accept as true on a motion to dismiss. See Iqbal, 556 U.S. at 678. Defendants also argue that Plaintiff fails to show that he was harmed as a result of Dr. Akabike’s actions. (Doc. 41 at 12-13.) The Court again disagrees. Plaintiff alleges that Dr. Akabike’s failure to properly treat his condition resulted in the unnecessary infliction of pain. (Doc. 29 at 11-12.) In addition, Plaintiff alleges the doctor’s refusal to update his medical file prevented him from being moved to a lower-tier cell. (Id. at 7, 10, 12-13.) As a result of his top- tier housing, Plaintiff was forced to walk down stairs, causing him to fall twice on June 28, 2017. (Id. at 10, 12-13.) These allegations are sufficient to establish a causal connection between Dr. Akabike’s actions or inactions and the harm he suffered.1 When liberally construed and viewed in the light most favorable to Plaintiff, Plaintiff’s factual allegations establish a deliberate indifference claim with respect to Claim 1 that is plausible on its face. See Iqbal, 556 U.S. at 678; Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). ii. Claim 2 In his complaint, Plaintiff alleges Correctional Officers Ceja and Harris knew about his medical condition and disability because they regularly saw him struggling to walk and being assisted by his cellmate. (Doc. 29 at 14.) Plaintiff further alleges that, after he fell the first time, his cellmate informed the officers about the fall and requested that he and Plaintiff be moved to a lower-tier cell. (Id. at 14-15.) The officers, however, responded by moving only the cellmate. (Id.) Plaintiff alleges the officers then forced him to walk down the stairs from his upper-tier cell, which caused him to fall the second time. (Id. at 15, 17.) Based on these allegations, the Court finds that Plaintiff states cognizable claims of deliberate indifference against Defendants Ceja and Harris. 1 Defendants also argue that Plaintiff fails to state a claim because he does not explicitly plead that, had Dr. Akabike updated his medical chart as he requested, it “would have ensured that he . . . received a lower tier bed assignment.” (Doc. 41 at 12.) This argument is splitting hairs, at least when analyzing the allegations of a pro se plaintiff at the Defendants argue that Plaintiff fails to satisfy the first, objective prong of a deliberate indifference claim with respect to Claim 2. (Doc. 41 at 7-8.) The Court does not agree. To satisfy the objective prong, Plaintiff need only show that he had a serious medical condition and that, because of that condition, he faced a substantial risk of serious harm by being housed in an upper- tier cell. See Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012). Plaintiff alleges he has degenerative disc disease and stenosis, which made it difficult for him to walk and caused him to fall while walking down the stairs. Courts have frequently found that moving an inmate to a housing assignment inconsistent with his medical needs can form the basis of a deliberate indifference claim. See, e.g., id.; Binns v. Asuncion, No. 2:16-cv-05481-DSF-SHK, 2020 WL 4032288, at *8 (C.D. Cal. 2020), report and recommendation adopted, 2020 WL 4060164 (C.D. Cal. 2020). With respect to the second prong, Defendants argue that Plaintiff’s allegations are conclusory and “amount to nothing more than bare assertions about what Defendants Harris and Ceja ‘should have known.’” (Doc. 41 at 8-9.) However, as explained above, Plaintiff alleges the defendants knew about his disability because they regularly saw him struggling to walk and being assisted by his cellmate, and because his cellmate informed them that he had fallen while walking down the stairs. Plaintiff’s contention that Defendants knew about his disability, then, is not conclusory—it is supported by specific factual allegations that, if proven, provide circumstantial evidence of their knowledge. See Lolli v. Cty. of Orange, 351 F.3d 410, 421 (9th Cir. 2003) (“deliberate indifference . . . may be shown by circumstantial evidence when the facts are sufficient to demonstrate that a defendant actually knew of a risk of harm”). Defendants’ implied contention that it would have been improbable for the officers to “have observed [Plaintiff] walking a particular way among . . . hundreds of inmates” is, itself, a factual contention. While it may undermine the probability or believability of Plaintiff’s factual allegations, it does not turn those allegations into conclusory statements. Defendants also contend that they are not liable for failing to move Plaintiff to a lower-tier cell because they lacked the official authority to do so. (Doc. 41 at 9.) Defendants point to the someone with a higher classification may authorize a housing assignment change. (Id.) Defendants’ argument is belied by Plaintiff’s contention that, upon receiving a cell-change request from Plaintiff’s cellmate, Defendants moved the cellmate, but not Plaintiff, to a lower-tier cell. (Doc. 29 at 14-16.) In other words, Defendants’ official authority is beside the point if they had the practical ability to move Plaintiff to a lower cell or to otherwise mitigate his risk of serious harm. See McDonald v. Yates, No. 1:09-cv-00730-LJO-SKO, 2012 WL 6514658, at *7 (E.D. Cal. 2012) (“even if [the d]efendants did not have the final authority to order or approve a bed move, they were still required to take reasonable action once . . . placed on notice that [the p]laintiff had a medical need for a lower bunk”), report and recommendation adopted, 2013 WL 238904 (E.D. Cal. 2013). Lastly, Defendants contend that, “[a]s noted by the Court in its [screening order] . . . , Defendants Harris and Ceja relied on a doctor’s diagnosis . . . , thereby evidencing the reasonableness of their conduct.” (Doc. 41 at 9.) However, in its order, the Court did not find that Ceja and Harris did, in fact, rely on a doctor’s diagnosis. Rather, the Court stated, “Plaintiff’s allegation that Dr. Akabike never updated his medical file to reflect his disability runs counter to his [deliberate indifference] claim” against the officers, because “if prison guards rely on a doctor’s diagnosis in making a housing assignment, such reliance is evidence that the officers did not act unreasonably.” (Doc. 30 at 8.) From Plaintiff’s complaint, though, it is unclear whether Defendants actually relied on Dr. Akabike’s diagnosis or whether, more generally, they acted reasonably in response to Plaintiff’s first fall. The Court finds that these are factual matters that it is unable to decide on a motion to dismiss. When liberally construing Plaintiff’s allegations, and specifically considering his allegations that (1) Officers Ceja and Harris personally witnessed his inability to walk properly and (2) were informed of his first fall, yet (3) refused to move him to a lower-tier bunk and (4) forced him to again walk downstairs, the Court finds that Plaintiff states deliberate indifference claims against the officers that are plausible on their face. See Iqbal, 556 U.S. at 678; Daniels- Hall, 629 F.3d at 998; Hebbe, 627 F.3d at 342). iii. Claim 3 As explained above, in the medical context, the second prong of a deliberate indifference claim “requires showing: (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citation omitted). In his complaint, Plaintiff alleges that after he fell down the stairs the second time, Officer Ceja “looked at [him] on the floor[,] . . . stated . . . that [he] was ‘faking,’” and refused to call for medical assistance. (Doc. 1 at 17.) This allegation shows a purposeful act or failure to respond to Plaintiff’s pain or possible medical need. Defendants argue that Plaintiff fails to show that he was harmed as a result of Ceja’s alleged (mis)conduct. (See Doc. 41 at 10.) The Court agrees. Plaintiff alleges that “immediately after” Ceja waved him off, other inmates yelled “man down,” then Officer Harris “activated his alarm for a medical emergency response.” (Doc. 29 at 17.) Plaintiff was then transferred to a hospital for further treatment. (Id.) Plaintiff fails to show that the mere moments in between Ceja’s inaction and Harris’s action caused him any additional injury. In his opposition, Plaintiff does not meaningfully dispute Defendants’ contention that he fails to show that he was harmed as a result of Ceja’s alleged refusal to activate his medical emergency alarm, when Harris activated his alarm immediately thereafter. Instead, Plaintiff focuses on Ceja’s alleged misconduct itself. (See, e.g., Doc. 46 at 5.) But as explained above, case law clearly requires a plaintiff to show that he was harmed as a result of a defendant’s deliberate indifference. Because Plaintiff does not make this showing with respect to Claim 3, he fails to establish a cognizable deliberate indifference claim with respect to Claim 3. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (“mere delay” of treatment, without harm resulting therefrom, “is insufficient to state a claim of deliberate medical indifference”). B. Qualified Immunity A defendant is entitled to “qualified immunity if one of two conditions are met. First, immunity will be applied if the plaintiff has not ‘alleged’ . . . facts that would make out a is entitled to qualified immunity if the constitutional right allegedly violated was not ‘“clearly established” at the time of defendant’s alleged misconduct.’” A.D. v. California Highway Patrol, 712 F.3d 446, 453-54 (9th Cir. 2013) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). District courts have “discretion in deciding which of the[se] two prongs . . . should be addressed first.” Pearson, 555 U.S. at 236. Regarding the second prong, “[f]or a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks and citation omitted). Courts “do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citations omitted). “[A] plaintiff must prove that precedent on the books at the time the officials acted would have made clear to [them] that [their actions] violated the Constitution.” Hamby v. Hammond, 821 F.3d 1085, 1091 (9th Cir. 2016) (internal quotation marks and citation omitted). i. Claim 2 As explained above, the Court finds that Plaintiff states cognizable deliberate indifference claims against Officers Ceja and Harris for their alleged refusal to move Plaintiff to a lower bunk, and forcing him to walk downstairs, after he fell the first time. Defendants contend that they are entitled to qualified immunity for this alleged conduct because they “are unaware of any authority that . . . deems it unreasonable for Harris and Ceja to rely on the judgment of the medical doctors who had authored his medical records or who had released him back to his cell without any medical accommodation after his alleged first fall.” (Doc. 41 at 14.) If medical doctors did, in fact, release Plaintiff back to his cell without any accommodation after his first fall, Officers Ceja and Harris may be entitled to qualified immunity for refusing to move Plaintiff to a lower-tier cell, particularly if they relied on the doctors’ evaluations in making that decision. See Akhtar v. Mesa, No. 2:09-cv-2733-MCE-AC, 2014 WL 6946142, at *12 (E.D. Cal. 2014) (correctional officer did not violate clearly established law by “rel[ied] on the judgment of the medical doctors who had authored . . . the [inmate’s] latest [accommodation] chrono”), report and recommendation adopted as modified, 2015 WL 12752691 (E.D. Cal. 2015). However, it is unclear from the complaint whether Dr. Akabike or another doctor evaluated Plaintiff after his first fall (but before his second fall) and explicitly decided to release him back to his cell without any accommodation. Assuming a doctor did make such a decision, it is also unclear whether Officers Ceja and Harris actually relied on that decision in deciding not to move Plaintiff to a lower-tier cell and ordering him to walk downstairs. Moreover, courts have found that, despite the lack of a valid medical chrono, the law is “sufficiently clear that a reasonable officer, once placed on notice as to the existence of a medical issue precluding . . .upper tier housing, would have known that he was required to take reasonable measures to abate the risk of harm.” McDonald, 2012 WL 6514658, at *9. It is unclear from the complaint whether Defendants took any measures in response to allegedly being placed on notice of Plaintiff’s medical condition and first fall (besides moving his cellmate to a lower-tier cell). The Court, therefore, is unable to decide the matter of qualified immunity without a more developed factual record. Although, when liberally construing his allegations, the Court finds that Plaintiff states cognizable claims against Officers Ceja and Harris, see Section III.A.2, supra, the Court is unable to determine whether the officers are entitled to qualified immunity without knowing, for example, whether they relied on a doctor’s diagnosis or decision not to provide Plaintiff any housing accommodation. See Brown v. Grove, 647 F. Supp. 2d 1178, 1183 (C.D. Cal. 2009) (“fact-intensive issues pertinent to a qualified immunity defense, particularly whether the defendant’s conduct was reasonable, are better left to summary judgment”) (citation omitted). Therefore, the Court denies Defendants’ motion to dismiss on qualified immunity grounds, with the acknowledgement that Defendants may reraise the matter at a later stage. For the reasons set forth above, the Court finds that Plaintiff states cognizable claims of deliberate indifference against Defendants with respect to Claims 1 and 2 but fails to state a cognizable claim against Defendant Ceja with respect to Claim 3. Accordingly, the Court 1. Defendants’ motion to dismiss Plaintiff’s third amended complaint (Doc. 41) be GRANTED IN PART and DENIED IN PART, as specified below. 2. Plaintiff’s claim of deliberate indifference against Defendant Ceja for his alleged refusal to activate his medical emergency alarm (Claim 3) be DISMISSED; and, 3. Plaintiff’s remaining claims of deliberate indifference against Defendants (Claims 1 and 2) be allowed to proceed. These Findings and Recommendations will be submitted to the United States District Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 21 days of the date of service of these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the specified time may result in waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.

Dated: September 28, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE