Petersen v. California Department of Correction & Rehab.

• Court: District Court, S.D. California
• Decided: December 11, 2020
• Docket: 3:18-cv-02473-JLS-MSB
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN PETERSEN, CDCR #BC-2040, Case No.: 18-CV-2473 JLS (MSB)

12 ORDER (1) GRANTING Plaintiff, 13 DEFENDANTS’ MOTION TO vs. DISMISS AND (2) ORDERING 14 PLAINTIFF TO SHOW CAUSE CALIFORNIA DEPARTMENT 15 WHY UNSERVED DEFENDANTS OF CORRECTIONS & SHOULD NOT BE DISMISSED 16 REHABILITATION, et al.,

17 Defendants. (ECF No. 16)

19 Presently before the Court is Defendants M. Deel, J. Silva, B. Martin (collectively, 20 the “Doctor Defendants”), and E. Velasco’s (all together, “Moving Defendants”)1 Motion 21 to Dismiss Plaintiff’s First Amended Complaint (“Mot.,” ECF No. 16). Plaintiff has not 22 filed a response to Moving Defendants’ Motion.2 The Court took this matter under 23

24 1 Although Plaintiff also brings claims against the California Department of Corrections and Rehabilitation 25 and the Richard J. Donovan Correctional Facility, those defendants have not been properly served, see ECF Nos. 7, 12, and accordingly this Motion is not joined by them. 26 2 Pursuant to Civil Local Rule 7.1(f)(3)(c), “[i]f an opposing party fails to file papers in the matter required 27 by Local Rule 7.1(e)(2), that failure may constitute a consent to the granting of that motion or other ruling 28 by the court.” The Ninth Circuit has held that a district court may properly grant an unopposed motion to 1 submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 2 18. Having carefully reviewed Plaintiff’s First Amended Complaint (“FAC,” ECF No. 3 14), Moving Defendants’ arguments, and the law, the Court GRANTS Moving 4 Defendants’ Motion. The Court further ORDERS Plaintiff to show cause why the 5 unserved defendants in this case should not be dismissed. 6 FACTUAL BACKGROUND3 7 Plaintiff Steven Petersen, a prisoner incarcerated at the Richard J. Donovan 8 Correctional Facility (“Donovan”) proceeding pro se, sues Moving Defendants for 9 deliberate indifference to Plaintiff’s serious medical need in violation of the Eighth 10 Amendment under Section 1983 of Title 42 of the United States Code. See FAC ¶¶ 3, 56– 11 59. Plaintiff also asserts claims for disability discrimination in violation of the Americans 12 with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., see FAC ¶¶ 60–63; violation 13 of the Rehabilitation Act, 29 U.S.C. § 794, see FAC ¶¶ 60–63; and negligence under 14 California state law, see FAC ¶¶ 64–66. 15 On February 14, 2017, a physician’s assistant at North Kern State Prison diagnosed 16 Plaintiff as mobility impaired and requiring a walker. FAC ¶¶ 11–12. “A permanent lower 17 bunk/lower tier accommodation was documented on a CDCR 128 C3 Medical 18 Classification Chrono dated February 14, 2017.” Id. ¶ 12. That same day, Plaintiff was 19 issued a wheelchair in place of a walker. Id. ¶ 13. 20 Plaintiff was transferred to Donovan in September 2017 and was assigned a lower- 21 tier cell in Facility D. Id. ¶ 14. In November 2017, Plaintiff substituted a walker for his 22 wheelchair due to Facility D’s wheelchair restrictions, and Plaintiff’s medical classification 23 remained unchanged. Id. ¶ 15. 24

25 for failure to oppose the motion. See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Here, the Court 26 finds that Plaintiff’s pro se and incarcerated status warrants deciding the Motion on the merits.

27 3 The facts alleged in Plaintiff’s First Amended Complaint are accepted as true for purposes of Moving 28 Defendants’ Motion. See Vasquez v. Los Angles Cnty., 487 F.3d 1246, 1249 (9th Cir. 2007) (holding that, 1 On December 4, 2017, the Doctor Defendants met to discuss Plaintiff’s mobility 2 accommodations. Id. ¶ 53. Plaintiff’s medical accommodation paperwork was not 3 updated. See id. ¶ 54. 4 On December 8, 2017, Defendant John Doe #3 ordered Plaintiff to move to an upper- 5 tier cell. Id. ¶ 16. Plaintiff objected to the move and informed Defendant John Doe #3 that 6 Plaintiff was mobility impaired; used a walker; and had a lower-bunk, lower-tier medical 7 classification. Id. ¶ 17. After confirming the order with Defendant Sergeant John Doe #1, 8 see id. ¶ 19, Defendant John Doe #3 informed Plaintiff that Defendant Sergeant John Doe 9 #1 stated that Plaintiff’s medical classification had expired and that Plaintiff’s cell was 10 needed for another inmate, see id. ¶ 20. Defendant Sergeant John Doe #2 then told Plaintiff 11 that Plaintiff’s medical classification had expired, that Plaintiff’s cell was needed, and that 12 “Plaintiff ‘WILL’ move or he would not like what would follow if he didn’t.” Id. ¶ 23. 13 Plaintiff interpreted Defendant Sergeant John Doe #2’s comment as “intimidation through 14 threats of violence.” Id. ¶ 24. 15 Plaintiff moved to the upper tier with assistance from the housing unit porters, see 16 id. ¶ 25, and experienced difficulties and extreme pain while ascending the stairs, see id. 17 ¶ 26. The next day, Plaintiff was unable to attend dayroom, yard, shower, and meals 18 without pain and discomfort while going up or down the stairs. Id. ¶ 27. On December 19 10, 2017, after not eating for nearly forty-eight hours, Plaintiff tried to descend the stairs 20 to attend breakfast. Id. ¶ 28–29. Plaintiff’s knee and back gave out, and Plaintiff fell down 21 the stairs. See id. ¶ 30. Plaintiff felt a tear in his knee, and something popped in Plaintiff’s 22 back. Id. ¶ 31. 23 Defendant E. Velasco, the corrections officer charged with monitoring the morning 24 meal release, witnessed Plaintiff fall. Id. ¶ 32. Defendant Velasco then pushed an alarm 25 button and announced a medical emergency over the radio. Id. ¶ 33. The prison ambulance 26 transported Plaintiff to the prison’s treatment triage area. Id. ¶ 34. 27 Once there, Defendant Dr. Martin treated Plaintiff and ordered medication and x- 28 rays for Plaintiff. See id. ¶ 35. Plaintiff told Dr. Martin that he fell down the stairs because 1 he requires a walker but was no longer in a lower-tier cell. See id. ¶ 36. Plaintiff asked 2 Dr. Martin to verify that Plaintiff’s lower-tier medical classification was still valid and to 3 prepare new medical classification paperwork if not. Id. ¶ 37. Dr. Martin agreed that 4 Plaintiff should not be housed on the upper tier. Id. ¶ 38. Nonetheless, Dr. Martin said 5 that he lacked the authority to prepare the paperwork and that he was unable to research 6 Plaintiff’s medical history because he was the only doctor on call. Id. However, “Dr. 7 Martin has the authority and obligation to write any order necessary for the Plaintiff’s care 8 and treatment per CDCR and California Correctional Health Care Services (CCHCS) 9 policies and procedures.” Id. Dr. Martin then released Plaintiff back to the housing unit. 10 Id. ¶ 39. 11 Upon arrival at the housing unit, Plaintiff told Defendants John Doe #3 and John 12 Doe #4 that he was disabled, required a walker, and had been injured falling down the 13 stairs. Id. ¶ 40. Plaintiff offered to show Defendants John Doe #3 and John Doe #4 his 14 medical classification paperwork documenting his lower-tier, lower-bunk requirement. Id. 15 ¶ 41. Defendants John Doe #3 and John Doe #4 “declined the offer.” Id. ¶ 42. Defendants 16 John Doe #3 and John Doe #4 then denied Plaintiff’s request for a temporary lower-tier 17 assignment pending a medical review, indicating “they did not do convenience moves.” 18 Id. ¶¶ 43–44. Defendants John Doe #3 and John Doe #4 “suggested Plaintiff ask a couple 19 of inmates to carry him up the stairs.” Id. ¶ 46. Plaintiff refused to return to his upper-tier 20 cell and was placed in handcuffs and escorted to a holding cell as a result. Id. ¶¶ 47–48. 21 Plaintiff was subsequently placed in administrative segregation. Id. ¶ 49. 22 The next day, on December 11, 2017, Facility D’s captain interviewed Plaintiff 23 about his placement in administrative segregation. Id. ¶ 50. The captain informed Plaintiff 24 that he should not have been moved from the lower tier or placed in administrative 25 segregation. Id. ¶ 51. He was released from administrative segregation and moved to a 26 lower bunk and lower tier in Facility B. Id. ¶ 52. 27 / / / 28 / / / 1 PROCEDURAL HISTORY 2 Plaintiff filed his initial complaint on October 27, 2018, see ECF No. 1, as well as a 3 motion to proceed in forma pauperis (“IFP”), see ECF No. 2. On January 28, 2019, the 4 Court issued an order granting Plaintiff’s IFP motion and sua sponte screening Plaintiff’s 5 complaint in accordance with Sections 1915(e)(2)(B) and 1915A(b) of Title 28 of the 6 United States Code. See generally ECF No. 5. Having concluded that “Plaintiff’s 7 Complaint contains factual allegations sufficient to overcome the ‘low threshold’ set for 8 sua sponte screening,” id. at 5 (citations omitted), the Court directed the U.S. Marshal to 9 serve Plaintiff’s complaint on Defendants, see id. at 7. Waivers of service were returned 10 executed for all named Defendants save the California Department of Corrections and 11 Rehabilitation (“CDCR”) and Donovan, see ECF Nos. 7–12, and on April 23, 2019, 12 Moving Defendants moved to dismiss the complaint, see ECF No. 13. 13 On May 17, 2019, Plaintiff filed the operative FAC. See ECF No. 14. Accordingly, 14 the Court denied without prejudice as moot Moving Defendants’ motion to dismiss the 15 original complaint. See ECF No. 15. Subsequently, on June 24, 2019, Moving Defendants 16 filed the instant Motion. See Mot. On July 9, 2019, Plaintiff moved for a forty-five-day 17 extension to respond to Moving Defendants’ Motion, see ECF No. 17, and the Court 18 granted the extension, requiring Plaintiff to file his opposition on or before September 12, 19 2019, see ECF No. 18. On September 16, 2019, Plaintiff moved for a second forty-five- 20 day extension to respond to Moving Defendants’ Motion, see ECF No. 19, and the Court 21 granted the extension, ordering Plaintiff to file his opposition on or before March 23, 2020, 22 see ECF No. 20. Despite the two extensions of time, Plaintiff has not filed a response in 23 opposition to Moving Defendants’ Motion. 24 LEGAL STANDARD 25 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 26 defense that the complaint “fail[s] to state a claim upon which relief can be granted,” 27 generally referred to as a motion to dismiss. The Court evaluates whether a complaint 28 states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil 1 Procedure 8(a), which requires a “short and plain statement of the claim showing that the 2 pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual 3 allegations,” . . . it [does] demand more than an unadorned, the-defendant-unlawfully- 4 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 5 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to 6 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 7 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 8 Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A 9 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 10 enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557). 11 To survive a motion to dismiss, “a complaint must contain sufficient factual matter, 12 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 13 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible 14 when the facts pled “allow the court to draw the reasonable inference that the defendant is 15 liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 16 556). That is not to say that the claim must be probable, but there must be “more than a 17 sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent 18 with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting 19 Twombly, 550 U.S. at 557). This review requires context-specific analysis involving the 20 Court’s “judicial experience and common sense.” Id. at 675 (citation omitted). “[W]here 21 the well-pleaded facts do not permit the court to infer more than the mere possibility of 22 misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is 23 entitled to relief.’” Id. 24 “In reviewing a Rule 12(b)(6) motion to dismiss, a district court must accept as true 25 all facts alleged in the complaint, and draw all reasonable inferences in favor of the 26 plaintiff.” Wi-LAN Inc. v. LG Elecs., Inc., 382 F. Supp. 3d 1012, 1020 (S.D. Cal. 2019) 27 (citing Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 28 945 (9th Cir. 2014)). Moreover, “[a] document filed pro se is to be liberally construed, 1 and a pro se complaint, however inartfully pleaded, must be held to less stringent standards 2 than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 3 (internal quotation marks omitted) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976); Fed. 4 R. Civ. P. 8(f) (“All pleadings shall be so construed as to do substantial justice”)); see also 5 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that Iqbal did not alter the 6 “obligation” to construe pro se pleadings liberally). 7 Where a complaint does not survive 12(b)(6) analysis, the Court will grant leave to 8 amend unless it determines that no modified contention “consistent with the challenged 9 pleading . . . [will] cure the deficiency.” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 10 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 11 1393, 1401 (9th Cir. 1986)). 12 ANALYSIS 13 As relevant to the present Motion, Plaintiff’s FAC asserts four claims against all 14 Moving Defendants: (1) an Eighth Amendment claim for deliberate indifference to 15 Plaintiff’s medical need; (2) an ADA claim; (3) a Rehabilitation Act claim; and (4) a 16 negligence claim under California law. See generally FAC. Moving Defendants contend 17 that the Court must dismiss all of Plaintiff’s claims against them because Plaintiff fails to 18 state any claim on which relief may be granted. See Mot. at 2. Accordingly, the Court will 19 analyze the sufficiency of each claim in turn. 20 I. Deliberate Indifference to Serious Medical Need 21 Plaintiff alleges that Moving Defendants “acted with deliberate indifference to the 22 personal security and serious medical condition of Plaintiff” in violation of his Eighth 23 Amendment rights. FAC ¶¶ 58–59. Moving Defendants argue that Plaintiff fails to allege 24 that Defendant Velasco knew of, and intentionally disregarded, a serious threat of harm to 25 Plaintiff. See ECF No. 16-1 (“Mot. Mem.”) at 12. Moving Defendants further argue that, 26 even if Plaintiff told Defendant Velasco of his medical accommodation, correctional staff, 27 including Defendant Velasco, subjectively believed it had already expired. See id. 28 Moreover, because Defendant Velasco is not a medical professional, he was not qualified 1 to verify Plaintiff’s medical claims and acted reasonably. See id. at 13. Finally, Moving 2 Defendants argue that Plaintiff fails to allege that the Doctor Defendants had the subjective 3 intent required to violate Plaintiff’s Eighth Amendment rights. See id. at 15. 4 To plead a claim for deliberate indifference to serious medical need, a plaintiff must 5 allege facts that show (1) the plaintiff’s serious medical need, and (2) the defendant’s 6 deliberate indifference to that need. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 7 A prison official exhibits deliberate indifference by knowing of and disregarding a 8 substantial risk of serious harm to inmate health. Farmer v. Brennan, 511 U.S. 825, 837 9 (1970). The official must know of “facts from which the inference could be drawn” that 10 “a substantial risk of serious harm exists,” and he must, in fact, draw that inference. Id. 11 Here, Plaintiff alleges that Defendant Velasco witnessed Plaintiff fall and called for 12 medical assistance. See FAC ¶¶ 32–33. Based on these allegations, Defendant Velasco 13 responded reasonably to Plaintiff’s medical need and was not deliberately indifferent. See 14 Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017–18 (9th Cir. 2006) (holding that 15 deliberate indifference requires the plaintiff to show the official was subjectively aware of 16 the serious medical need and failed to adequately respond), overruled on other grounds by 17 Castro v. Cnty. of Los Angeles, 833 F.3d 106 (9th Cir. 2016) (en banc). 18 Further, Plaintiff alleges that Dr. Martin incorrectly believed he lacked authority to 19 order Plaintiff’s accommodation, and that time constraints also prevented Dr. Martin from 20 doing so. See FAC ¶¶ 38–39. These allegations likewise are insufficient to plead deliberate 21 indifference. See Jett, 439 F.3d at 1096 (“[A]n inadvertent or negligent failure to provide 22 adequate medical care alone does not state a claim under § 1983.”). Similarly, Plaintiff 23 does not allege sufficient facts to show that the Doctor Defendants intentionally 24 disregarded a serious threat to Plaintiff by not updating his medical accommodation after 25 their meeting on December 4, 2017; rather, Plaintiff and the Doctor Defendants seem to 26 have had a nonactionable difference of opinion as to his medical condition. See FAC ¶¶ 27 53–54; see also Toguchi v. Chung, 391 F.3d 1051, 1059 (9th Cir. 2004) (“[T]here must be 28 a conscious disregard of a serious risk of harm for deliberate indifference to exist.”); 1 Franklin v. Oregon, State Welfare Division, 662 F.2d 1337, 1344 (9th Cir. 1981) (“A 2 difference of opinion between a prisoner patient and prison medical authorities regarding 3 treatment does not give rise to a [section] 1983 claim.”). The allegations that Moving 4 Defendants acted with “deliberate indifference,” FAC ¶ 58, and that Moving Defendants 5 “acted knowingly, willfully, maliciously, and with reckless or callous disregard of 6 Plaintiff’s federally protected rights,” id. ¶ 59, are mere legal conclusions not entitled to an 7 assumption of truth without support from further factual allegations that state a plausible 8 claim for relief. See Iqbal, 556 U.S. at 678–79. 9 Accordingly, Plaintiff fails to allege sufficient facts to state a claim for deliberate 10 indifference against Moving Defendants. The Court therefore GRANTS Moving 11 Defendants’ Motion as to this claim and DISMISSES WITHOUT PREJUDICE 12 Plaintiff’s claim for deliberate indifference to serious medical need as to Moving 13 Defendants. 14 II. Violations of the Americans with Disabilities Act and/or Rehabilitation Act 15 Plaintiff alleges that Moving Defendants 16 denied and excluded Plaintiff from meals, yard, showers, and safety, when they deliberately moved Plaintiff to the upper tier, 17 knowing Plaintiff was a protected class member, and failing to 18 accommodate Plaintiff accordingly . . . in violation of the Americans with Disabilities Act Title II and the Rehabilitation 19 Act Section 54. 20 21 FAC ¶ 62. Moving Defendants argue that Plaintiff fails to allege that Plaintiff’s upper-tier 22 assignment was “by reason” of his disability. See Mot. Mem. at 17. Moving Defendants 23 further argue that Plaintiff fails to allege that the Doctor Defendants intentionally 24 discriminated against Plaintiff as required to recover monetary damages under Title II. See 25 id.; see also Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001) (“To recover 26 monetary damages under Title II of the ADA, a plaintiff must prove intentional 27 discrimination on the part of the defendant.”). 28 / / / 1 Title II of the ADA prohibits a public entity from discriminating against a qualified 2 individual based on disability. See 42 U.S.C. § 12132; Weinreich v. L.A. Cnty. Metro. 3 Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997). It is well settled that, 4 [t]o state a claim of disability discrimination under Title II, the plaintiff must allege four elements: (1) the plaintiff is an 5 individual with a disability; (2) the plaintiff is otherwise qualified 6 to participate in or receive the benefit of some public entity’s services, programs, or activities; (3) the plaintiff was either 7 excluded from participation in or denied the benefits of the public 8 entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such 9 exclusion, denial of benefits, or discrimination was by reason of 10 the plaintiff’s disability. 11 Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (citing Weinreich, 114 F.3d at 978). 12 Similarly, to bring suit under section 504 of the Rehabilitation Act, the plaintiff must show 13 that “(1) he is an individual with a disability; (2) he is otherwise qualified to receive the 14 benefit; (3) he was denied the benefits of the program solely by reason of his disability; 15 and (4) the program receives federal financial assistance.” Duvall, 260 F.3d at 1135 (citing 16 Weinreich, 114 F.3d at 978). 17 Here, Plaintiff fails to allege that Moving Defendants were responsible for his 18 transfer to the upper tier. See generally FAC ¶¶ 16–23. Further, Plaintiff fails to allege 19 that the transfer was made by reason of his disability, instead alleging that Defendants 20 “fail[ed] to accommodate Plaintiff accordingly.” Id. ¶ 62. Thus, Plaintiff’s allegations are 21 insufficient to state a claim under either the ADA or the Rehabilitation Act. See Simmons, 22 609 F.3d at 1022 (“The ADA prohibits discrimination because of disability, not inadequate 23 treatment for disability.”). 24 Accordingly, the Court GRANTS Moving Defendants’ Motion and DISMISSES 25 WITHOUT PREJUDICE Plaintiff’s claim under the ADA and the Rehabilitation Act as 26 to Moving Defendants. 27 / / / 28 / / / 1 III. Negligence 2 Finally, Plaintiff alleges that Moving Defendants’ negligent actions were the legal 3 and proximate cause of Plaintiff’s worsened back and knee issues, which resulted in great 4 mental and physical pain. See FAC ¶¶ 65–66. Moving Defendants argue that Plaintiff fails 5 to allege that Defendant Velasco owed a duty to Plaintiff, see Mot. Mem. at 14, and that 6 Plaintiff fails to allege how any Moving Defendant breached a duty owed to Plaintiff. See 7 id. at 14, 16. However, regardless of whether Plaintiff has sufficiently alleged the elements 8 of a claim for negligence, the Court has discretion to decline to exercise jurisdiction over 9 Plaintiff’s state law negligence claim. 10 Pursuant to Section 1367(a) of Title 28 of the United States Code, in any civil action 11 in which the district court has original jurisdiction, the district court “shall have 12 supplemental jurisdiction over all other claims in the action within such original 13 jurisdiction that they form part of the same case or controversy under Article III,” except 14 as provided in subsections (b) and (c). “[O]nce judicial power exists under § 1367(a), 15 retention of supplemental jurisdiction over state law claims under 1367(c) is discretionary.” 16 Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). “The district court may 17 decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the 18 district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. 19 § 1367(c)(3). The Supreme Court has cautioned that, “if the federal claims are dismissed 20 before trial, . . . the state claims should be dismissed as well.” United Mine Workers of 21 Am. v. Gibbs, 383 U.S. 715, 725 (1996). 22 Here, in light of the Court’s dismissal of all the federal claims over which it has 23 original jurisdiction, the Court, in its discretion, declines to exercise jurisdiction over 24 Plaintiff’s sole remaining claim for violation of state law. The Court therefore GRANTS 25 Moving Defendants’ Motion and DISMISSES WITHOUT PREJUDICE Plaintiff’s 26 negligence claim as to Moving Defendants. 27 / / / 28 / / / 1 CONCLUSION 2 For the reasons set forth above, the Court GRANTS Moving Defendants’ Motion 3 ||(ECF No. 16) and DISMISSES WITHOUT PREJUDICE Plaintiff's claims against 4 ||Moving Defendants. Plaintiffs MAY FILE an amended complaint within forty-five (45) 5 || days of the date of the electronic docketing of this Order. Should Plaintiff elect to file a 6 ||second amended complaint, it must cure the deficiencies noted herein and must be 7 ||complete in itself without reference to Plaintiff's prior complaint. See S.D. Cal. CivLR 8 Any claims not re-alleged in the second amended complaint will be considered 9 || waived. See Lacey v. Maricopa Cnty., 693 F.3d 896, 925, 928 (9th Cir. 2012). Failure to 10 || file a second amended complaint within forty-five (45) days of the electronic docketing 11 || of this Order will result in dismissal with prejudice of all claims asserted against Moving 12 || Defendants. 13 Further, as noted above, neither proof of service nor executed waivers of service 14 been filed for CDCR and Donovan. Federal Rule of Civil Procedure 4(m) requires 15 a summons and complaint be served “within 90 days after the complaint is filed.” Ifa 16 || plaintiff fails to serve a defendant with the summons and complaint within 90 days, the 17 ||court may dismiss the action without prejudice as to that defendant after notice to the 18 || plaintiff. 7d. This Order to Show Cause constitutes notice to Plaintiff that the Court will 19 dismiss this action without prejudice as to CDCR and Donovan on January 26, 2021, 20 || unless, no later than that date, Plaintiff files either (1) proof that service of the summons 21 ||and complaint was timely effectuated on CDCR and Donovan, or (2) a declaration under 22 ||penalty of perjury showing good cause for failure to timely effect service upon them, 23 accompanied by a motion for leave to service process outside of the 90-day period. 24 IT IS SO ORDERED. 25 ||Dated: December 11, 2020 tt 26 pon Janis L. Sammartino 7 United States District Judge 28