1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO RODRIGUEZ, No. 2:21-cv-00622 DB P 12 Plaintiff, 13 v. ORDER 14 WARDEN, SOLANO STATE PRISON, et al., 15 Defendants. 16 17 Plaintiff, an inmate proceeding pro se and in forma pauperis, seeks relief pursuant to 42 18 U.S.C. § 1983. Plaintiff claims defendants were deliberately indifferent to plaintiff’s serious 19 medical needs in violation of his Eighth Amendment rights. Presently before the court is 20 plaintiff’s Second Amended Complaint (“SAC”) for screening. (ECF No. 21.) For the reasons 21 set forth below, the court will give plaintiff the option of proceeding on his cognizable claims or 22 being given leave to file an amended complaint. 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1 SCREENING 2 I. Legal Standards 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 5 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 6 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 7 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 8 U.S.C. § 1915A(b)(1) & (2). 9 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 12 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 13 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 14 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. Rule 8(a)(2) of 15 the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim 16 showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what 17 the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 18 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 19 However, in order to survive dismissal for failure to state a claim a complaint must 20 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 21 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 22 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 23 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 24 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 25 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 26 //// 27 //// 28 //// 1 The Civil Rights Act under which this action was filed provides as follows: 2 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 3 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 4 or other proper proceeding for redress.
5 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 6 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 7 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 8 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 9 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform 10 an act which he is legally required to do that causes the deprivation of which complaint is made.” 11 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 12 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 13 their employees under a theory of respondeat superior and, therefore, when a named defendant 14 holds a supervisorial position, the causal link between him and the claimed constitutional 15 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 16 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 17 concerning the involvement of official personnel in civil rights violations are not sufficient. See 18 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 19 II. Linkage Requirement 20 Under Section 1983, a plaintiff bringing an individual capacity claim must demonstrate 21 that each defendant personally participated in the deprivation of his rights. See Jones v. 22 Williams, 297 F.3d 930, 934 (9th Cir. 2002). There must be an actual connection or link between 23 the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 24 Ortez v. Washington County, State of Oregon, 88 F.3d 804, 809 (9th Cir. 1996); see also Taylor 25 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 26 Government officials may not be held liable for the actions of their subordinates under a 27 theory of respondeat superior. Iqbal, 556 U.S. at 676 (stating vicarious liability is inapplicable in 28 1 Section 1983 suits). Since a government official cannot be held liable under a theory of vicarious 2 liability in Section 1983 actions, plaintiff must plead sufficient facts showing that the official has 3 violated the Constitution through his own individual actions by linking each named defendant 4 with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights. 5 Id. at 676. 6 III. Allegations in the SAC 7 Plaintiff states that, at all relevant times, he was a prisoner at California State Prison 8 Solano (“SOL”). (ECF No. 21 at 2.) Plaintiff names five defendants in this action: Registered 9 Nurse (“RN”) N. Sabati, RN G. Coder, RN Isaac Walatye, Dr. Kemal, and Dr. Boitor. (Id. at 3, 10 5.) 11 The SAC contains the following allegations: Plaintiff was placed on suicide watch “on or 12 about December 6 or 12….” (Id. at 4.) Defendant Kemal or defendant Boitor prescribed plaintiff 13 Propanolo, Busbar, Abilify1, and Benadryl “all to be delivered by a Registered Nurse with an 14 Officer present.” (Id.) The prescription also instructed that plaintiff was to only receive “only 15 one and to make sure the Patien swallow [sic].” (Id.) Defendants Sabati, Coder, and Walatye 16 were assigned to deliver medication to prisoners in Ad Seg where plaintiff was located at the 17 time. (Id.
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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 ANTONIO RODRIGUEZ, No. 2:21-cv-00622 DB P 12 Plaintiff, 13 v. ORDER 14 WARDEN, SOLANO STATE PRISON, et al., 15 Defendants. 16 17 Plaintiff, an inmate proceeding pro se and in forma pauperis, seeks relief pursuant to 42 18 U.S.C. § 1983. Plaintiff claims defendants were deliberately indifferent to plaintiff’s serious 19 medical needs in violation of his Eighth Amendment rights. Presently before the court is 20 plaintiff’s Second Amended Complaint (“SAC”) for screening. (ECF No. 21.) For the reasons 21 set forth below, the court will give plaintiff the option of proceeding on his cognizable claims or 22 being given leave to file an amended complaint. 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1 SCREENING 2 I. Legal Standards 3 The court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 5 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims 6 that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be 7 granted, or that seek monetary relief from a defendant who is immune from such relief. See 28 8 U.S.C. § 1915A(b)(1) & (2). 9 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 12 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 13 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 14 pleaded, has an arguable legal and factual basis. See Franklin, 745 F.2d at 1227. Rule 8(a)(2) of 15 the Federal Rules of Civil Procedure “requires only ‘a short and plain statement of the claim 16 showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what 17 the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 18 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 19 However, in order to survive dismissal for failure to state a claim a complaint must 20 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 21 factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 22 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the 23 allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 24 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all 25 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 26 //// 27 //// 28 //// 1 The Civil Rights Act under which this action was filed provides as follows: 2 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation 3 of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, 4 or other proper proceeding for redress.
5 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 6 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 7 Monell v. Dept. of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 8 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of § 9 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform 10 an act which he is legally required to do that causes the deprivation of which complaint is made.” 11 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 12 Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 13 their employees under a theory of respondeat superior and, therefore, when a named defendant 14 holds a supervisorial position, the causal link between him and the claimed constitutional 15 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); 16 Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations 17 concerning the involvement of official personnel in civil rights violations are not sufficient. See 18 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 19 II. Linkage Requirement 20 Under Section 1983, a plaintiff bringing an individual capacity claim must demonstrate 21 that each defendant personally participated in the deprivation of his rights. See Jones v. 22 Williams, 297 F.3d 930, 934 (9th Cir. 2002). There must be an actual connection or link between 23 the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 24 Ortez v. Washington County, State of Oregon, 88 F.3d 804, 809 (9th Cir. 1996); see also Taylor 25 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 26 Government officials may not be held liable for the actions of their subordinates under a 27 theory of respondeat superior. Iqbal, 556 U.S. at 676 (stating vicarious liability is inapplicable in 28 1 Section 1983 suits). Since a government official cannot be held liable under a theory of vicarious 2 liability in Section 1983 actions, plaintiff must plead sufficient facts showing that the official has 3 violated the Constitution through his own individual actions by linking each named defendant 4 with some affirmative act or omission that demonstrates a violation of plaintiff's federal rights. 5 Id. at 676. 6 III. Allegations in the SAC 7 Plaintiff states that, at all relevant times, he was a prisoner at California State Prison 8 Solano (“SOL”). (ECF No. 21 at 2.) Plaintiff names five defendants in this action: Registered 9 Nurse (“RN”) N. Sabati, RN G. Coder, RN Isaac Walatye, Dr. Kemal, and Dr. Boitor. (Id. at 3, 10 5.) 11 The SAC contains the following allegations: Plaintiff was placed on suicide watch “on or 12 about December 6 or 12….” (Id. at 4.) Defendant Kemal or defendant Boitor prescribed plaintiff 13 Propanolo, Busbar, Abilify1, and Benadryl “all to be delivered by a Registered Nurse with an 14 Officer present.” (Id.) The prescription also instructed that plaintiff was to only receive “only 15 one and to make sure the Patien swallow [sic].” (Id.) Defendants Sabati, Coder, and Walatye 16 were assigned to deliver medication to prisoners in Ad Seg where plaintiff was located at the 17 time. (Id. at 5.) On December 24, 2008, defendant Sabati arrived at plaintiff’s cell with a 18 correctional officer to give plaintiff his medication. (Id. at 4.) Defendant Coder was also present 19 as the nurse assigned to sit outside plaintiff’s cell. (Id.) Instead of a single pill, defendant Sabati 20 gave plaintiff two bags containing thirty pills of Benadryl and sixty pills of Abilify. (Id.) 21 Plaintiff was later found in his cell unresponsive and showing signs of overdose. (Id. at 6.) An 22 outside hospital treated plaintiff for overdose and aspirated pills from plaintiff. (Id.) 23 Plaintiff claims that defendants Sabati, Coder, Walatye, Kemal, and Boitor were 24 deliberately indifferent to plaintiff’s serious medical needs as he was given large quantities of 25 medication even though they were aware that plaintiff was suicidal. (Id. at 5.) Plaintiff seeks 26
27 1 Plaintiff refers to this medication as both “Ability” and “Abilify” throughout the SAC. These appear to reference the same medication. For consistency purposes, the court will use the name 28 “Abilify” in this order. 1 relief in the form of punitive and compensatory damages in the amount of thirty million dollars 2 ($30,000,000.00). (Id. at 10.) 3 IV. Does Plaintiff State a Claim under § 1983? 4 A. Possible Failure Exhaust Administrative Remedies 5 As noted in the court’s prior screening order (ECF No. 16), plaintiff again indicates that 6 he may not have properly exhausted his administrative remedies prior to filing the instant action. 7 (See ECF No. 21 at 4.) (stating that plaintiff filed an appeal but it was “lost [sic] due to [plaintiff 8 being] housed in Adseg Suicidal Watch.”) As a demonstration of the exhaustion of 9 administrative remedies is not a pleading requirement (see Wyatt v. Terhune, 315 F.3d 1108, 10 1112 (9th Cir. 2003)), and inmates are not required to specifically plead or demonstrate 11 exhaustion in their complaints (see Jones v. Bock, 549 U.S. 199, 216 (2007)), the court will 12 conduct a substantive screening of this action at this time. However, the plaintiff is again warned 13 that should defendants be ordered to respond to this action, any failure to exhaust that can be 14 substantiated may be proffered by defendants as an affirmative defense in support of the dismissal 15 of this action. See generally Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (stating failure 16 to exhaust is affirmative defense defendants must plead and prove). 17 B. Deliberate Indifference to Medical Needs 18 1. Legal Standard 19 The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. 20 Const. amend. VIII. The unnecessary and wanton infliction of pain constitutes cruel and unusual 21 punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); 22 Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). 23 Neither accident nor negligence constitutes cruel and unusual punishment, as “[i]t is obduracy 24 and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited 25 by the Cruel and Unusual Punishments Clause.” Whitley, 475 U.S. at 319. 26 If a prisoner’s Eighth Amendment claim arises in the context of medical care, the prisoner 27 must allege and prove “acts or omissions sufficiently harmful to evidence deliberate indifference 28 to serious medical needs.” Estelle, 429 U.S. at 106. An Eighth Amendment medical claim has 1 two elements: “the seriousness of the prisoner’s medical need and the nature of the defendant’s 2 response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on 3 other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 4 A medical need is serious “if the failure to treat the prisoner’s condition could result in 5 further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 6 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include 7 “the presence of a medical condition that significantly affects an individual’s daily activities.” Id. 8 at 1059-60. By establishing the existence of a serious medical need, a prisoner satisfies the 9 objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 10 825, 834 (1994). 11 If a prisoner establishes the existence of a serious medical need, he must show that prison 12 officials responded to the serious medical need with deliberate indifference. See Id. at 834. In 13 general, deliberate indifference may be shown when prison officials deny, delay, or intentionally 14 interfere with medical treatment, or may be shown by the way in which prison officials provide 15 medical care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). 16 Before it can be said that a prisoner’s civil rights have been abridged with regard to 17 medical care, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ 18 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter 19 Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06); see also 20 Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (“Mere negligence in 21 diagnosing or treating a medical condition, without more, does not violate a prisoner’s Eighth 22 Amendment rights.”); McGuckin, 974 F.2d at 1059 (same). Deliberate indifference is “a state of 23 mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for 24 the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835. 25 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S. 26 at 104-05. To establish a claim of deliberate indifference arising from delay in providing care, a 27 plaintiff must show that the delay was harmful. See Hallett v. Morgan, 296 F.3d 732, 745-46 (9th 28 Cir. 2002); Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir. 1994); McGuckin, 974 F.2d at 1059; 1 Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Hunt v. Dental Dep’t, 865 F.2d 198, 2 200 (9th Cir. 1989); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 3 1985). In this regard, “[a] prisoner need not show his harm was substantial; however, such would 4 provide additional support for the inmate’s claim that the defendant was deliberately indifferent to 5 his needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 6 Finally, mere differences of opinion between a prisoner and prison medical staff or 7 between medical professionals as to the proper course of treatment for a medical condition do not 8 give rise to a § 1983 claim. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 9 332 (9th Cir. 1996); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. Oregon, 662 10 F.2d 1337, 1344 (9th Cir. 1981). 11 2. Analysis 12 i. Registered Nurse N. Sabati and Registered Nurse G. Coder 13 Plaintiff has alleged sufficient facts to state a claim against defendants Sabati and Coder 14 for deliberate indifference to plaintiff’s medical needs. The allegations in the SAC establish that 15 plaintiff purportedly had a serious medical need as plaintiff was facing mental health difficulties 16 and was found to be suicidal by his doctors. Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 17 2010) (stating that heightened suicide risk is a serious medical need). The SAC also alleges that 18 defendant Sabati, in the presence of defendant Coder, provided plaintiff with a large number of 19 pills despite the instructions from either defendant Kemal or Boitor that plaintiff was only to be 20 given a single pill under observation. (ECF No. 21 at 4.) This is sufficient to establish deliberate 21 indifference to those medical needs on screening. 22 Accordingly, plaintiff has alleged sufficient facts to state a cognizable Eighth Amendment 23 medical needs claim against defendants Sabati and Coder. 24 ii. Registered Nurse Isaac Walatye, Dr. Kemal, and Dr. Boitor 25 The SAC does not contain sufficient alleged facts to state a claim against defendants 26 Walatye, Kemal, and Boitor. Specifically, plaintiff fails to satisfy the linkage requirement which 27 provides that there must be an actual connection or link between the actions of the defendants and 28 the deprivation alleged to have been suffered by plaintiff. See Ortez, 88 F.3d at 809; see also 1 Taylor, 880 F.2d at 1045. Under the facts in the SAC, defendant Walatye was one of the RNs 2 assigned to deliver medication to plaintiff but was not present when plaintiff was given the large 3 quantities of medication. (See ECF No. 21 at 4.) Though plaintiff claims defendant Walatye was 4 aware of plaintiff’s serious medical need, he does not include any facts which establish that 5 defendant Walatye performed any act or omission which violated or contributed to violating 6 plaintiff’s rights. Similarly, though defendants Kemal and Boitor were allegedly aware plaintiff 7 was suicidal, plaintiff does not allege any facts that show they were aware that plaintiff was given 8 large quantities of medication. (See Id. at 4-8.) In fact, plaintiff alleges that it was one or both of 9 these defendants who gave the specific instruction that plaintiff should be given only a single 10 dose under the supervision of multiple prison officials. (Id. at 4.) 11 Given the above, plaintiff has failed to allege sufficient facts to state a cognizable claim 12 against defendants Walatye Kemal, and Boitor as the SAC fails to connect the actions of these 13 defendants to the deprivation of plaintiff’s rights. See Ortez, 88 F.3d at 809; see also Taylor, 880 14 F.2d at 1045. As such, these claims are not cognizable, plaintiff may not proceed with them. See 15 28 U.S.C. § 1915A(b)(1) & (2). As the court has found above that the SAC contains cognizable 16 claims, plaintiff will be given the option to either proceed on his cognizable claims or be given 17 leave to file an amended complaint. 18 C. Plaintiff’s Additional Claim 19 The SAC may suggest that plaintiff may wish to state another claim in addition to his 20 Eighth Amendment medical needs claim. (See e.g., ECF No. 21 at 5.) It is unclear the nature of 21 plaintiff’s claim or if it is even different from his medical needs claim. On the form used by 22 plaintiff to complete his SAC, plaintiff has filed out the section entitled “Claim II” and has 23 indicated it is also an Eighth Amendment claim. (Id.) However, plaintiff has also marked three 24 boxes indicating the “issue involved” even though the form clearly instructs the plaintiff to only 25 mark one. (Id.) Further, one of the boxes marked states that this possible claim regards medical 26 care. (Id.) The factual allegations of the complaint do not appear to address a separate claim and 27 plaintiff later states at the end of this section that defendants showed “deliberate indifference 28 towards a serious medical need….” (Id. at 8.) Given the above, plaintiff has not alleged sufficient 1 | facts to state any additional cognizable claims. If plaintiff wishes to state additional claims 2 | against these or other defendants, he will be given the option to further amend his complaint. 3 CONCLUSION 4 For the foregoing reasons, IT IS HEREBY ORDERED as follows: 5 1. The Second Amended Complaint (ECF No. 21) states a cognizable Eighth 6 Amendment claim against defendants N Sabati and G. Coder for deliberate 7 indifference to plaintiffs serious medical needs. 8 2. The Second Amended Complaint (ECF No. 21) fails to state any other cognizable 9 claims. 10 3. Plaintiff may choose to proceed on his cognizable claims set out above or he may 11 choose to amend his complaint. 12 4. Within thirty (30) days of the date of this order plaintiff shall notify the court of how 13 he wishes to proceed. Plaintiff may use the form included with this order for this 14 purpose. 15 5. Plaintiff is warned that his failure to comply with this order will result in a 16 recommendation that this action be dismissed. 17 || Dated: December 22, 2022
19 0 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 21 22 23 24 DB:14 25 || DB/DB Prisoner Inbox/Civil Rights/S/rodr0622.sern(3).not 26 27 28
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4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 9 ANTONIO RODRIGUEZ, No. 2:21-cv-00622 DB P 10 Plaintiff, 11 v. PLAINTIFF’S NOTICE ON HOW TO PROCEED 12 WARDEN, SOLANO STATE PRISON, et al., 13 Defendants. 14
15 Check one: 16 17 _____ Plaintiff wants to proceed immediately on his Eighth Amendment medical needs claim 18 against Registered Nurse N. Sabati and Registered Nurse G. Coder. Plaintiff understands 19 that by going forward without amending the complaint he is voluntarily dismissing all 20 other claims and defendants. 21 22 ____ Plaintiff wants to amend the complaint. 23 24 DATED:_______________________ 25 Antonio Rodriguez Plaintiff pro se 26 27 28