Williams v. Daub

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN WESLEY WILLIAMS, Case No.: 22-cv-1667-AGS-MMP

12 Plaintiff, REPORT AND 13 v. RECOMMENDATION RE:

14 BELTRAN, et al., 1. PLAINTIFF’S MOTION FOR 15 Defendants. LEAVE TO FILE A SECOND AMENDED COMPLAINT; 16 AND 17 2. DEFENDANTS’ MOTION FOR 18 SUMMARY JUDGMENT 19 [ECF Nos. 30, 43] 20 21 22 This Report and Recommendation is submitted to United States District Judge 23 Andrew G. Schopler pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(c) and 72.3 24 of the United States District Court for the Southern District of California. Pending before 25 the Court is Plaintiff John Wesley Williams’s (“Plaintiff”) Motion for Leave to File a 26 Second Amended Complaint. [ECF No. 30.] The Court found the motion suitable for 27 determination on the papers and without oral argument pursuant to Civil Local Rule 28 7.1(d)(1). [ECF No. 31.] While Plaintiff’s motion was under submission, Defendants filed 1 a motion for summary judgment asserting Plaintiff failed to exhaust his administrative 2 remedies. [ECF No. 43.] For the reasons set forth below, the Court RECOMMENDS the 3 District Judge GRANT-IN-PART and DENY-IN-PART Plaintiff’s Motion for Leave to 4 File a Second Amended Complaint and DENY without prejudice Defendants’ Motion for 5 Summary Judgment. 6 I. RELEVANT BACKGROUND 7 A. Procedural History 8 On October 25, 2022, Plaintiff filed a civil rights action under 42 U.S.C. § 1983. 9 [ECF No. 1.] On April 27, 2023, the Court granted Plaintiff leave to proceed in forma 10 pauperis, screened his original Complaint, dismissed all claims alleged against Defendants 11 Daub and Edwards, and directed the U.S. Marshals to serve Defendants Bailis, Beltran, 12 Bowen, Boyd,1 and Moreno. [ECF No. 6.] 13 On May 18, 2023, Plaintiff filed a First Amended Complaint (“FAC”) in which he 14 added Defendant Serrano. [ECF No. 9.] On July 3, 2023, Defendants Bailis, Beltran, 15 Bowen, Boyd, and Moreno moved to sever the defendants and claims from the FAC. [ECF 16 No. 15.] 17 On January 24, 2024, the Court screened Plaintiff’s FAC and dismissed all claims 18 alleged against Defendant Serrano. [ECF No. 22.] The Court then granted Defendants’ 19 motion to sever and dismissed Count 1 and all claims alleged against Defendants Bailis 20 and Bowen in the FAC. [ECF No. 23.] On February 9, 2024, Defendants Beltran, Boyd, 21 and Moreno, the only remaining defendants, answered the FAC. [ECF No. 25.] 22 On April 10, 2024, Plaintiff moved for leave to file a Second Amended Complaint, 23 along with his proposed Second Amended Complaint (“SAC”). [ECF Nos. 30, 30-1.] 24 Defendants opposed the motion, and Plaintiff filed a reply brief. [ECF Nos. 32, 36.] 25 26 27 1 Plaintiff refers to Defendant Boyd in his pleadings, whereas Defendants refer to 28 1 On May 9, 2024, the Court entered a Scheduling Order, setting a deadline of June 7, 2 2024 for a motion to amend the pleadings or adding parties. [ECF No. 34.] Plaintiff 3 subsequently sought to stay discovery until the Court ruled on his pending motion, which 4 the Court denied. [ECF Nos. 39, 42.] 5 On August 26, 2024, Defendants Beltran, Boyd, and Moreno filed a motion for 6 summary judgment on the grounds Plaintiff failed to exhaust administrative remedies 7 before filing his FAC as required by the Prison Litigation Reform Act (PLRA). [ECF No. 8 43.] In response, Plaintiff filed a motion requesting leave to be excused from opposing the 9 pending summary judgment motion, asserting the motion is “futile and moot” in light of 10 Plaintiff’s pending SAC. [ECF No. 44.] 11 B. Factual Allegation in Plaintiff’s SAC 12 In his proposed SAC, Plaintiff again claims a history of mental illness and self-harm. 13 [ECF No. 30-1.] He brings three counts against three separate sets of defendants: Count 1 14 contains both new and old allegations from his FAC, Count 2 is primarily the same as 15 Count 2 from his FAC in which he was permitted to continue prosecuting in the Order 16 Granting Motion to Sever, ECF No. 23, and Count 3 contains new allegations. Overall, the 17 SAC brings claims against five new defendants—the California Department of Corrections 18 and Rehabilitation (“CDCR”) and individual defendants Gates, Barletto, Huss, and 19 Sanchez. [ECF No. 30-1.] Like Plaintiff’s current claim in the FAC, Counts 1 and 3 also 20 assert “deliberate indifference to serious psychiatric medical care due to discrimination.” 21 [ECF No. 30-1.] The Court summarizes Plaintiff’s allegations as to each Count below. 22 1. Count 1 23 In Count 1, Plaintiff alleges new events as well as a reiteration of events alleged in 24 Count 2 of the FAC. [Id.] The new events start with a diagnosis dating back to August 25 2014. [ECF No. 30-1 ¶ 4.] Plaintiff alleges he was “diagnosed with Exhibitionism” in 26 August 2014, where his “exhibitionist urges were identified as a substitute for self- 27 mutilation.” [Id.] Plaintiff alleges Defendant Gates, as Chief, and Defendant CDCR only 28 allowed prison employee subordinates to prescribe medications for treatment of Post- 1 Traumatic Stress Disorder (PTSD) but “do not allow or provide actual treatment outside of 2 medications.” [Id.] On December 16, 2014, Plaintiff filed a grievance log #LAC-HC- 3 14049253 “to enforce a recommendation made by a mental health Interdisciplinary 4 Treatment Team (IDTT) for transfer to DSH for Exhibitionist treatment.” [Id. ¶ 6.] 5 However, his referral was denied. 6 Plaintiff alleges he was diagnosed with PTSD by a California State Prison Corcoran 7 psychiatrist sometime between 2020 and 2021, and mental health treatments for PTSD and 8 Exhibitionism are known as “specialty treatments” and “only offered at Department State 9 Hospitals (DSH) outside of CDCR.” [Id. ¶¶ 2, 5.] 10 From 2014 through 2024, Plaintiff manifested “ongoing, uncontrollable behavior” 11 where his self-mutilation turned from suicide attempts “to self-mutilation for pleasure and 12 to regulate emotions.” [Id. ¶ 7.] Between May and September 2022, Plaintiff was “admitted 13 into California Medical Facility (CMF) Psychiatric Inpatient Program (PIP) due to a series 14 of self-mutilation incidents” at Richard J. Donovan Correctional Facility (“RJD”). [Id. ¶ 15 8.] Plaintiff was discharged around October 2022 and was subsequently recommended for 16 PTSD treatment at “RJD Enhanced Out-Patient (EOP) level of care” under Defendant 17 Beltran’s supervision. [Id.] As alleged in Count 2 of the FAC, Plaintiff returned to RJD 18 EOP and told Beltran, the Senior Psychologist Supervisor, about “childhood trauma and 19 triggers” for self-harm and advocated for PTSD treatment. [Id. ¶ 9.] Beltran responded with 20 “I will look into it.” [Id.] On October 7, 2022, Plaintiff’s PTSD influenced him to “self- 21 mutilate” while in a trigger setting he previously described to Beltran. [Id. ¶ 10] Beltran 22 approved Plaintiff’s return to his cell following the incident, even though Plaintiff was still 23 “suffering PTSD trauma related symptoms with unrestricted access to sharp objects to self 24 harm.” [Id.] 25 26 27 28 1 2. Count 2 2 The events in Count 2 follow the events from Count 1. According to Plaintiff, 3 Defendant Beltran’s action described in Count 1 led to his admission to RJD’s “Mental 4 Health Crisis Bed (MHCB)” for suicide prevention from October 9 to October 17, 2022, 5 due to suicidal trends and self-mutilation. [Id. ¶ 11.] Plaintiff reported continued suicidal 6 thoughts and self-harm to Defendant Moreno, his assigned Primary Clinician, while at RJD 7 MHCB, and Defendant Moreno said, “while I’m not qualified to diagnos[e], I believe you 8 are suffering from a personality disorder.” [Id. ¶ 12.] Defendant Moreno gave Plaintiff 9 printed research materials and tried to “convince” Plaintiff to agree with his personality 10 disorder “theory.” [Id.] Defendant Moreno shared the theory with Defendants Boyd and 11 Beltran to create a treatment plan for the “unconfirmed” personality disorder. [Id. ¶ 13.] 12 Plaintiff says this was done to “avoid referral for specialty treatment.” [Id. ¶ 12.] Plaintiff 13 was then prematurely discharged from the MHCB “while still suffering” from PTSD as 14 well as suicidal and self-harm thoughts. [Id. ¶ 13.] Following his discharge from the 15 MHCB, on October 20, 2022, Plaintiff used his “unrestricted access to sharp objects” to 16 cut his “left arm above the wrist,” and he was allowed to walk around the prison “actively 17 bleeding profoundly for over an hour.” [Id. ¶ 14.] Unidentified officers discovered him 18 “semi-unconscious, fatigued from blood loss, and disoriented,” and they “handcuffed and 19 secured” him in a holding cage in the psychiatric service unit until Beltran was notified. 20 [Id. ¶¶ 14, 15] Plaintiff further alleges Beltran ordered his subordinates to “ignore” 21 Plaintiff’s “report of ongoing intense dreams of suicide and acts of self harm” and cleared 22 him to return to his cell where he had “unrestricted access to sharp objects.” [Id. ¶ 15.] 3 23

24 25 2 Plaintiff’s allegations throughout Count 2 of the SAC are essentially the same as his allegations from Count 2 in his FAC. [ECF No. 30-1.] The Court previously found these 26 allegations were sufficient to survive screening. [ECF Nos. 6, 22.] 27 3 Plaintiff also includes a single conclusory sentence alleging non-African American 28 1 3. Count 3 2 Count 3 includes new allegations against Defendant Beltran, as well as newly added 3 Defendants CDCR, Sanchez, Huss, and Barletto. Plaintiff claims he engaged “in a dozen 4 or more” self-harm incidents from October 20, 2022 through May 2023. [Id. ¶ 17.] After 5 becoming aware of Plaintiff’s self-harm incidents, Defendant Beltran would clear Plaintiff 6 to return to his cell which still contained sharp objects, and/or instruct his subordinates to 7 “defy” CDCR’s Suicide Prevention and Response procedures.” [Id.] 8 On April 8, 2023, Plaintiff told Defendant Sanchez, a psychiatric technician, he 9 wanted to harm himself, to which Sanchez laughed and said, “unless you say the magic 10 word[,] I can’t help you.” [Id. ¶ 18.] Plaintiff then returned to his cell quarters and self- 11 mutilated. [Id.] Between April 8, 2023 and May 23, 2023, Plaintiff alleges he reported 12 “more than a few self-inflicted lacerations” to Defendants Beltran and Sanchez, which 13 Sanchez responded by providing “gauzes, non-adherent pads, and other medical supplies” 14 and telling Plaintiff to “treat [his] own wounds in [his] cell.” [Id. ¶ 19.] 15 In May 2023, Dr. Thompson, psychologist intern supervised by Defendant Beltran, 16 recommended Plaintiff be transferred from RJD due to his mental health and inclination to 17 self-harm. [Id. ¶ 21.] Beltran refused and prevented Dr. Thompson from presenting his 18 recommendation to the IDTT. [Id.] 19 On June 10, 2023, Beltran was informed Plaintiff cut his right arm but still cleared 20 Plaintiff to return to his cell without removing the object Plaintiff used to inflict the gash. 21 [Id. ¶ 20.] Between September 21, 2023, and February 6, 2024, Plaintiff was held in MHCB 22 and then referred to CMF PIP with no incidents of self-harm for four consecutive months. 23 [Id. ¶ 22.] Plaintiff returned to RJD with a discharge recommendation to participate in 24 25 26 display or suffer PTSD trauma-related symptoms or engage in repeated acts of self- 27 mutilation. [ECF No. 30-1 ¶ 16.] The Court notes there are no other allegations involving race, or mention of race, throughout the SAC; nor are there any allegations involving 28 1 PTSD treatment and groups, but CDCR ignored the recommendation. [Id. ¶ 23.] From 2 February 6, 2024, to February 28, 2024, Beltran had a “personal protégé” act as Plaintiff’s 3 primary clinician on record, while Beltran directed Plaintiff’s “actual” treatment. [Id. ¶ 24.] 4 At Plaintiff’s IDTT session on February 12, 2024, Beltran continued a treatment plan based 5 on the personality disorder theory and continued to disregard the recommendation from 6 CMF PIP. [Id.] 7 On March 2, 2024, Plaintiff “self mutilated at the left arm” and had “the urge to 8 continue to self harm” based on distress over “drug infested living conditions.” [Id. ¶ 25.] 9 While Plaintiff was in “TTA-medical under wound care,” Defendant Huss, a Correctional 10 Lieutenant, told Plaintiff, “I’m issuing you a Restrictive Housing Unit (RHU) 11 Administrative Segregation (Ad-Seg) lock up order” where Plaintiff would remain 12 overnight but would be cleared the following morning. [Id.] 13 The next morning, Defendant Barletto, a psychologist, asked Plaintiff how he was 14 feeling, and Plaintiff stated he still had urges to cut himself. [Id. ¶ 26.] Defendant Barletto 15 informed Plaintiff “they are coming to take you back.” [Id.] Plaintiff remained in the RSH 16 Ad-Seg overnight, and Defendant Barletto returned the next morning. [Id.] Plaintiff 17 reiterated he “still [had] thoughts and urge to cut.” [Id.] Barletto then responded, “well, I 18 can’t hold your hand or put you in a rubber room” and then left. [Id.] Plaintiff was later 19 taken back to his cell where there were sharp objects. [Id.] Plaintiff alleges he engaged in 20 PTSD-triggered self-harm on four separate dates in March 2024, and in each incident, 21 Defendant Beltran determined that Plaintiff be cleared for return to his cell despite access 22 to sharp objects to facilitate self-harm. [Id. ¶ 27.] 23 II. MOTION TO FILE SECOND AMENDED COMPLAINT 24 Plaintiff contends his proposed SAC complies with the Court’s previous orders—in 25 particular, he seeks to assert three separate counts that comply with Federal Rules of Civil 26 27 28 1 Procedure 8, 18, and 20, as the claims are multiple claims against a single party or a series 2 of transactions and occurrences based on factual background.5 Defendants oppose the 3 motion on two grounds. [ECF No. 32.] First, Defendants assert the Court should deny leave 4 to amend as to Count 1 against Defendant Gates related to events in 2014 because of 5 Plaintiff’s “egregious and unexplained delay” in seeking to add the claim. [Id. at 3.] 6 Second, Defendants contend the proposed SAC once again fails to comply with Rules 18 7 and 20, as it alleges unrelated claims against different Defendants involving different 8 operative facts. [Id. at 3–4.] 9 A. Legal Standard 10 Rule 15 governs amendment to pleadings. A party is allowed to “amend its pleading 11 once as a matter of course” under Rule 15(a)(1). Rule 15 allows subsequent amendments 12 to pleadings “only with the opposing party’s written consent or the court’s leave” and “[t]he 13 court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2); see 14 Sonoma Cnty. Ass’n of Retired Employees v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 15 2013) (“In general, a court should liberally allow a party to amend its pleading.”). “Five 16 factors are taken into account to assess the propriety of a motion for leave to amend: bad 17 faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the 18 plaintiff has previously amended the complaint.” Johnson v. Buckley, 356 F.3d 1067, 1077 19 (9th Cir. 2004); see also DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 20 1987). Prejudice to the opposing party is the most important factor. Eminence Cap., LLC 21

22 23 4 All further references to “Rule” are to the Federal Rules of Civil Procedure unless otherwise expressly noted. 24

25 5 Plaintiff also contends each claim plausibly demonstrates ongoing violations that hold Plaintiff under imminent danger. The cases Plaintiff cites, however, involve the imminent 26 danger exception to in forma pauperis. [ECF No. 30 at 2–3.] The Court already found 27 Plaintiff’s “allegations sufficient, when considered as a ‘threshold procedural question,’ to plausibly suggest Williams faced ‘ongoing danger’ of physical injury at the time of filing.” 28 1 v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). The Ninth Circuit has recognized 2 the “rule favoring liberality in amendments to pleadings is particularly important for the 3 pro se litigant.” Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). 4 B. Analysis 5 While Defendants acknowledge the liberal standard for leave to amend a complaint 6 under Rule 15, they maintain Plaintiff should be denied leave to amend based on undue 7 delay and futility of amendment under Rules 18 and 20. [ECF No. 32 at 3.] The Court 8 addresses Defendants’ arguments in turn. 9 1. Undue Delay 10 The Ninth Circuit has recognized delay, though not dispositive, is relevant to the 11 amendment analysis, “especially when no reason is given for the delay.” Lockheed Martin 12 Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999); see McGlinchy v. Shell 13 Chem. Co., 845 F.2d 802, 809 (9th Cir. 1988) (“‘[U]ndue delay’ is one valid reason for a 14 district court to deny a party leave to amend.”); DCD Programs, 833 F.2d at 186 (“[D]elay, 15 by itself, is insufficient to justify denial of leave to amend.”). 16 Here, Plaintiff seeks to add a claim in his proposed SAC against Defendants Gates 17 and CDCR arising from alleged unconstitutional medical care in 2014—eight years prior 18 to both the filing of this action as well as the other allegations in Plaintiff’s proposed SAC. 19

20 21 6 The Court notes some, but not all, of the allegations Plaintiff seeks to add in his proposed SAC involve events that occurred after Plaintiff filed his FAC, ECF No. 9. To the extent 22 Plaintiff seeks to supplement his pleading under Rule 15(d), the legal standard is the same 23 as a motion to amending a pleading under Rule 15(a). See Cathy v. Palma, No. 22-cv-1565, 2023 WL 3213857, at *2 (S.D. Cal. May 2, 2023) (citing Foman v. Davis, 371 U.S. 178, 24 182 (1962) (“In deciding whether to grant leave to amend pursuant to Fed. R. Civ. P. 15(a) 25 or to supplement his original pleading pursuant to Fed. R. Civ. P. 15(d), courts consider the Foman factors: (1) undue delay, (2) bad faith or dilatory motive on the part of the 26 movant, (3) repeated failure of previous amendments, (4) undue prejudice to the opposing 27 party, and (5) futility of the amendment.”); see also Lyon v. ICE, 308 F.R.D. 203, 214 (N.D. Cal. 2015) (“The legal standard for granting or denying a motion to supplement 28 1 [ECF No. 30-1 ¶ 4.] As Defendants correctly point out, Plaintiff knew of this incident when 2 he filed his initial Complaint in 2022, yet he did not include any allegations related to the 3 2014 incident in his Complaint. [ECF No. 32 at 3; see ECF No. 1.] Nor did Plaintiff include 4 any allegations regarding the 2014 incident in his FAC filed on May 18, 2023. [ECF No. 5 9.] Perhaps most significantly, Plaintiff does not explain his delay. Accordingly, the Court 6 finds the undue delay factor supports denying Plaintiff leave to add claims against 7 Defendants Gates and CDCR7 arising from alleged medical care in 2014. 8 2. Futility of Amendment 9 Rule 18(a) provides a party “may join, as independent or alternative claims, as many 10 claims as it has against an opposing party.” Fed. R. Civ. P. 18(a). Rule 20 governs 11 permissive joinder of parties and permits several persons to be joined as defendants in one 12 action if “any right to relief is asserted against them jointly, severally, or in the alternative 13 with respect to or arising out of the same transaction, occurrence, or series of transactions 14 or occurrences[]” and “any question of law or fact common to all defendants will arise in 15 the action.” Fed. R. Civ. P. 20(a)(2). “Rule 20 is designed to promote judicial economy, 16 and reduce inconvenience, delay, and added expense.” Coughlin v. Rogers, 130 F.3d 1348, 17 1351 (9th Cir. 1997). Taken together, Rule 18 permits a plaintiff to join claims arising from 18 separate incidents, even if unrelated, if those claims are asserted against the same 19 defendant, and Rule 20 permits joinder of multiple defendants in a single action if a right 20 to relief against them arises out of the “same transaction, occurrence, or series of 21 transactions or occurrences” and presents a common question of law or fact. Harrell v. Bd. 22 of Trustees of California State Univ., 710 F. Supp. 3d 742, 747 (N.D. Cal. 2024) (citing 23 Fed. R. Civ. P. 20(a)(2)). “[T]he same transaction or occurrence requirement ‘refers to 24 similarity in the factual background of a claim.’” Fid. Nat. Title Co. v. U.S. Small Bus. 25 Admin., No. 13-cv-2030, 2014 WL 1883939, at *8 (E.D. Cal. May 12, 2014) (quoting 26 27 7 Though Defendants raise this argument with respect to Defendant Gates only, the Court 28 1 Coughlin, 130 F.3d at 1350). “Claims that ‘arise out of a systematic pattern of events’ and 2 ‘have [a] very definite logical relationship’ arise from the same transaction or occurrence.” 3 Soares v. Paramo, No. 13-cv-2971, 2016 WL 3022040, at *4 (S.D. Cal. May 25, 2016) 4 (quoting Bautista v. Los Angeles Cnty., 216 F.3d 837, 842–43 (9th Cir. 2000) (internal 5 quotations omitted)). 6 Rule 20, like Rule 15(a)(2), requires liberal construction to promote judicial 7 economy and trial convenience. League to Save Lake Tahoe v. Tahoe Regional Planning 8 Agency, 558 F.2d 914, 917 (9th Cir. 1977) (citation omitted). “For courts applying Rule 20 9 and related rules, ‘the impulse is toward entertaining the broadest possible scope of action 10 consistent with fairness to the parties; joinder of claims, parties and remedies is strongly 11 encouraged.’” Hagan v. Rogers, 570 F.3d 146, 153 (3d Cir. 2009) (quoting United Mine 12 Workers of America v. Gibbs, 383 U.S. 715, 724 (1966)); see also League to Save Lake 13 Tahoe, 558 F.2d at 917. However, as the Court previously recognized, “[u]nrelated claims 14 against different defendants belong in different suits.” [ECF No. 23 at 2–3 (quoting Jones 15 v. Placer Cty. Sheriff’s Off., No. 19-cv-0342, 2020 WL 1472426, at *2 (E.D. Cal. Mar. 26, 16 2020).] 17 Here, Defendants contend Plaintiff’s proposed SAC fails to comply with Rules 18 18 and 20 because it “includes a variety of unrelated claims against different Defendants”— 19 specifically, the claim against Defendant Gates concerning 2014 events is unrelated to the 20 claims against Defendants Sanchez, Huss, and Barletto involving allegations in 2023 and 21 2024. [ECF No. 32 at 4.] Defendants further argue Plaintiff’s proposed SAC fails to satisfy 22 Rule 20(a)(2)(A) because not “all Defendants participated in the same transaction or series 23 of transactions” and no question of fact exists common to Defendants. [ECF No. 32 at 5.] 24 In its Order granting the motion to sever, the Court previously found Plaintiff failed to 25 satisfy the “same transaction” showing, as neither of the counts alleged in the FAC were 26 “based on the same precipitating event.” [ECF No. 23 at 3–4.] In his current motion, 27 Plaintiff alleges new factual allegations in Counts 1 and 3 and contends his proposed SAC 28 is based on a “series of transactions and occurrences based on factual background” in which 1 Defendant Beltran, the senior psychologist supervising Plaintiff’s enhanced outpatient 2 treatment for PTSD, ignored Plaintiff’s reports of suicidal thoughts and acts of self-harm, 3 cleared Plaintiff to return to situations where Plaintiff had unrestricted access to sharp 4 objects to self-mutilate, and further ordered his subordinates to do the same. [ECF Nos. 30 5 at 2, 30-1 ¶¶ 8, 15.] Plaintiff brings claims against Defendant Beltran for deliberate 6 indifference to Plaintiff’s serious psychiatric medical needs in all three Counts of the 7 proposed SAC, which comports with Rule 18(a). Plaintiff brings the same cause of action 8 for deliberate indifference to his psychiatric medical needs against Defendants Sanchez, 9 Huss, and Barletto also based on his theory that Defendant Beltran controlled Plaintiff’s 10 care by ordering his subordinates to ignore Plaintiff’s reported urges to self-harm and to 11 clear Plaintiff to return to his cell despite access to sharp objects. Construing Plaintiff’s 12 allegations liberally as the Court must for a pro se plaintiff, Lopez, 203 F.3d at 1131, the 13 Court finds Plaintiff sufficiently alleges a series of transactions or occurrences and a 14 common question of law or fact as to Defendants Sanchez, Huss, and Barletto for purposes 15 of permissive joinder under Rule 20(a)(2). See Fed. R. Civ. P. 20(a)(2); Coughlin, 130 F.3d 16 at 1351. 17 However, even construing Plaintiff’s allegations liberally, Plaintiff’s proposed SAC 18 fails Rule 20’s standard for permissive joinder of Defendant Gates. See Boquist v. 19 Courtney, 32 F.4th 764, 774 (9th Cir. 2022) (“A liberal construction of a pro se complaint, 20 however, does not mean that the court will supply essential elements of a claim that are 21 absent from the complaint.”). Plaintiff’s only allegations in the proposed SAC involving 22 Defendant Gates are that the CDCR, and Defendant Gates as Chief, in 2014 permitted 23 prisoner employee subordinates to diagnosis PTSD and prescribe medications “to prisoners 24 like Plaintiff” but did not offer treatment outside of medication for PTSD specific 25 symptoms. [ECF No. 30-1 ¶¶ 3–4.] Plaintiff does not allege any connection between 26 Defendants Beltran and Gates; nor does he allege Defendant Gates treated Plaintiff directly 27 in 2014 or cleared Plaintiff to return to his cell despite reports of self harm and access to 28 sharp objects, either on his own or at Defendant Beltran’s directive. Thus, Plaintiff’s claim 1 against Defendant Gates does not arise out of the same series of transactions or 2 occurrences, and “the mere fact that all [the plaintiff’s] claims arise under the same general 3 law does not necessarily establish a common question of law or fact” for purposes of Rule 4 20. See Coughlin, 130 F.3d at 1351. The Court finds Defendant Gates is misjoined under 5 Rule 20; thus, Plaintiff’s motion should be denied as to the claim against Defendant Gates 6 based on futility of amendment. 7 For the foregoing reasons, the Courts RECOMMENDS the following: 8 1. Plaintiff’s motion for leave to file a Second Amended Complaint be 9 GRANTED IN PART and DENIED IN PART. 10 a. The Court finds amendment would not be futile based on improper 11 joinder of Plaintiff’s claims against Defendants Sanchez, Huss, and 12 Barletto and therefore RECOMMENDS Plaintiff’s motion be 13 GRANTED as to Plaintiff’s proposed amendments as to these 14 Defendants in Count 3. 15 b. However, the Court RECOMMENDS Plaintiff’s motion to amend be 16 DENIED as to the 2014 incident involving Defendants Gates and 17 CDCR based on both undue delay and futility of amendment. 18 2. Based on the undersigned’s recommendation to grant in part the motion, the 19 Court further RECOMMENDS Plaintiff’s Second Amended Complaint, 20 ECF No. 30-1, be DEEMED FILED with paragraphs 3–7 STRICKEN. 21 III. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2) 22 As the Court recognized in its previous screening orders, ECF Nos. 6, 22, Plaintiff 23 is proceeding in forma pauperis; the Court may dismiss his case “at any time” if it “fails to 24 state a claim on which relief may be granted” or “seeks monetary relief against a defendant 25 who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii); Lopez, 203 F.3d at 26 1126–27. In light of the Court’s recommendation to grant in part Plaintiff’s motion to file 27 the SAC and deem the proposed SAC filed, and because the SAC supersedes the operative 28 complaint, the Court once again finds it appropriate to conduct another “early judicial 1 screening” to make clear which claims require a response. See Jones v. Bock, 549 U.S. 199, 2 223 (2007). 3 “The standard for determining whether a plaintiff has failed to state a claim upon 4 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 5 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 6 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual 7 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 8 Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). But “[a]ll or part of the 9 complaint may be dismissed sua sponte if the prisoner’s claims lack an arguable basis in 10 law or fact.” Hill v. Lundgren, No. 21-cv-01361, 2021 WL 6622255, at *1 (D. Nev. Dec. 11 29, 2021). 12 A. Deliberate Indifference 13 Plaintiff alleges Eight Amendment violations of “deliberate indifference to serious 14 psychiatric medical care due to discrimination” in all three Counts of his SAC. [ECF No. 15 30-1.] Plaintiff’s primary contentions are Defendants failed to provide him adequate 16 medical care by ignoring his propensity to and reports of self-harm and his suicidal 17 ideations, which resulted in multiple incidents of self-inflicted lacerations. [Id.] 18 “In the Ninth Circuit, the test for deliberate indifference consists of two parts.” Jett 19 v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see Williams v. Navarro, No. 18-cv-1581, 20 2022 WL 395968, at *3 (S.D. Cal. Feb. 9, 2022), report and recommendation adopted, No. 21 18-cv-1581, 2022 WL 910215 (S.D. Cal. Mar. 29, 2022), appeal dismissed, No. 22-55426, 22 2022 WL 16548070 (9th Cir. Aug. 19, 2022) (“A cause of action for deliberate indifference 23 to a prisoner’s serious illness or injury requires proof of both an objective and a subjective 24 component.”). “First, the plaintiff must show a ‘serious medical need’ by demonstrating 25 that ‘failure to treat a prisoner’s condition could result in further significant injury or the 26 ‘unnecessary and wanton infliction of pain.’” Jett, 493 F.3d at 1096 (citing Estelle v. 27 Gamble, 429 U.S. 97 (1976)). As the Court recognized in its prior order, “[a] heightened 28 suicide risk or an attempted suicide is a serious medical need.” [ECF No. 6 at 7 (quoting 1 Conn v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 2010), vacated, 563 U.S. 915 (2011), 2 opinion reinstated in relevant part, 658 F.3d 897 (9th Cir. 2011) (citing Farmer, 511 U.S. 3 at 837)).] Accordingly, the objective component is satisfied. 4 Second, the plaintiff must demonstrate the defendant’s response to the need was 5 “deliberately indifferent” which requires both “(a) a purposeful act or failure to respond to 6 a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett, 7 439 F.3d at 1096. “A prison official acts with ‘deliberate indifference . . . only if the [prison 8 official] knows of and disregards an excessive risk to inmate health and safety.’” Toguchi 9 v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (quoting Gibson v. Cnty. of Washoe, 290 10 F.3d 1175, 1187 (9th Cir. 2002)). “Under this standard, the prison official must not only 11 ‘be aware of facts from which the inference could be drawn that a substantial risk of serious 12 harm exists,’ but that person ‘must also draw the inference.’” Id. (quoting Farmer v. 13 Brennan, 511 U.S. 825, 837 (1994)). To “show deliberate indifference, the plaintiff must 14 show that the course of treatment the [official] chose was medically unacceptable under 15 the circumstances and that the [official] chose this course in conscious disregard of an 16 excessive risk to the plaintiff’s health.” Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 17 2019). 18 / / 19 / / 20 / / 21 / / 22 / / 23 / / 24 / / 25 / / 26 / / 27 / / 28 / / 1 B. Analysis 2 The Court addresses whether Plaintiff sufficiently alleges a claim against each new 3 defendant to survive screening. 4 1. Defendant Gates8 5 As discussed above, Plaintiff alleges in 2014, Defendant Gates, as Chief, permitted 6 prison employees to diagnosis PTSD and prescribe medications “to prisoners like Plaintiff” 7 but did not allow them to provide treatment outside of medication. [ECF No. 30-1 ¶ 3.] 8 Plaintiff does not allege Defendant Gates treated Plaintiff in 2014; nor does he allege 9 Defendant Gates knew of or disregarded Plaintiff’s serious psychiatric medical needs. As 10 such, Plaintiff’s allegations against Defendant Gates are insufficient to state a plausible 11 claim for deliberate indifference. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) 12 (“A difference of opinion does not amount to a deliberate indifference to [the plaintiff’s] 13 serious medical needs.”); Norvell v. Roberts, No. 20-cv-0512, 2020 WL 4464454, at *4 14 (S.D. Cal. Aug. 4, 2020) (recognizing “differences of opinion over what medical treatment 15 or course of care is proper” is insufficient to constitute an Eighth Amendment violation); 16 Williams, 2022 WL 395968, at *3 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)) 17 (“[T]he official must both be aware of facts from which the inference could be drawn that 18 a substantial risk of serious harm exists, and he must also draw the inference.”). 19 Additionally, to the extent Plaintiff alleges supervisory liability, his allegations fail 20 to allege an independent constitutional violation against Defendant Gates. See Iqbal, 556 21

22 23 8 As set forth above, the Court recommends Plaintiff be denied leave to amend to bring claims against Defendant Gates. However, because the Court also recommends the SAC 24 be deemed filed, the Court proceeds to address Plaintiff’s allegations as to Defendant Gates 25 for purposes of this Report and Recommendation. In addition, though the statute of limitations likely bars Plaintiff’s claims arising 26 from 2014, the Court addresses the merits and finds Plaintiff fails to state a claim against 27 Defendants Gates and CDCR. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (recognizing two-year California’s statute of limitation for personal injury applies to a § 28 1 U.S. at 677 (“Absent vicarious liability, each Government official, his or her title 2 notwithstanding, is only liable for his or her own misconduct.”); see Hunt v. Dental Dept., 3 865 F.2d 198, 200 (9th Cir. 1989) (recognizing no vicarious liability of supervisor for 4 personnel at a department of corrections). 5 2. Defendant CDCR 6 Plaintiff mentions Defendant CDCR briefly in Count 1, in tandem with Defendant 7 Gates, and then briefly in Count 3. [ECF No. 30-1 ¶¶ 3–4, 23.] Like Defendant Gates, 8 Plaintiff alleges in Count 1 that in 2014, the CDCR permitted prison employees to 9 diagnosis PTSD and prescribe medications without allowing treatment outside of 10 medication. [ECF No. 30-1 ¶ 4.] In Count 3, Plaintiff alleges the CDCR ignored a 11 recommendation for Plaintiff to participate in “living with PTSD” treatment and groups. 12 [Id. ¶ 23.] Plaintiff brings these claims against Defendant CDCR in both its individual and 13 official capacity. [Id. at 2.] However, as “the CDCR is not an individual,” Plaintiff cannot 14 bring a claim against it individually. Lopez v. California Dep't of Corr. & Rehab., No. 13- 15 cv-00238, 2013 WL 5675518, at *4 (C.D. Cal. Oct. 15, 2013). 16 Plaintiff also sues the CDCR in its official capacity. As a state agency, the CDCR is 17 immune from actions for money damages and retrospective declaratory relief brought 18 under § 1983 under the Eleventh Amendment. See Brown v. California Dep’t of Corr., 554 19 F.3d 747, 752 (9th Cir. 2009) (citing Dittman v. California, 191 F.3d 1020, 1025–26 (9th 20 Cir.1999)); Morgan v. California Dep’t of Corr. & Rehab., 362 F. App'x 730 (9th Cir. 21 2010) (“The district court properly dismissed Morgan’s section 1983 claims because 22 CDCR is immune from suit under the Eleventh Amendment.”); Ashford v. Hill, No. 22-cv- 23 00846, 2023 WL 5105827, at *2 (C.D. Cal. June 7, 2023), report and recommendation 24 adopted, No. 22-cv-00846, 2023 WL 4824916 (C.D. Cal. July 27, 2023) (citing Lund v. 25 Cowan, 5 F.4th 964, 969 (9th Cir. 2021)). Here, Plaintiff does not specify which relief he 26 seeks from the CDCR, but instead generally requests from all Defendants declaratory and 27 injunctive relief, as well as “punitive, exemplary, prospective, compensatory, nominal, and 28 1 special damages.” [ECF No. 30-1 at 18.] Plaintiff’s claim against CDCR for monetary 2 damages and retrospective declaratory relief are barred as a matter of law. 3 Moreover, the Court finds Plaintiff’s claim in Count 1 against Defendant CDCR 4 arising from 2014 fails to state a claim for the same reasons discussed in section III.B.2.1 5 regarding Defendant Gates. Further, Defendant CDCR is only briefly mentioned in Count 6 3 as failing to adopt a recommendation for Plaintiff to participate in a “living with PTSD” 7 treatment and group program. At most, Plaintiff alleges a difference of opinion regarding 8 his treatment for PTSD, which is insufficient to state a claim for deliberate indifference in 9 violation of the Eighth Amendment. See Sanchez, 891 F.2d at 242. Accordingly, in addition 10 to recommending Plaintiff be denied leave to amend to add claims against Defendant 11 CDCR, even assuming the truth of Plaintiff’s allegations, the Court finds Plaintiff’s SAC 12 fails to state a claim against CDCR. 13 3. Defendant Sanchez 14 Plaintiff alleges on April 8, 2023, he told Defendant Sanchez he had thoughts to self- 15 mutilate, and Defendant Sanchez laughed in response and said, “unless you say the 16 magic[,] word I can’t help you.” [ECF No. 30-1 at ¶ 18.] Plaintiff then self-harmed when 17 he returned to his cell. [Id.] Plaintiff’s allegations regarding this April 8, 2023 incident, if 18 presumed true, are sufficient to state a plausible claim against Defendant Sanchez for 19 deliberate indifference to Plaintiff’s serious medical needs. 20 Plaintiff alleges there were several more incidents between April 8, 2023 and May 21 23, 2023 in which he reported self-inflicted lacerations to Defendant Sanchez, who 22 responded by providing Plaintiff gauzes, pads, and “other medical supplies” and instructed 23 him to treat himself in his cell. [Id. ¶ 19.] These allegations, however, are not sufficient for 24 a claim of deliberate indifference, as Plaintiff reported existing lacerations to Defendant 25 Sanchez who responded by providing medical aid. Thus, even construing Plaintiff’s 26 allegations liberally, he does not allege Defendant Sanchez disregarded an excessive risk 27 or failed to act; instead, Plaintiff appears to allege the medical response to his self-inflicted 28 lacerations was inadequate. “Inadvertent failures to provide adequate medical care, mere 1 negligence or medical malpractice, delays in providing care (without more), and 2 differences of opinion over what medical treatment or course of care is proper, are all 3 insufficient to constitute an Eighth Amendment violation.” Norvell, 2020 WL 4464454, at 4 *4 (citing Estelle v. Gamble, 429 U.S. 97, 105–07 (1976) and collecting other cases). 5 Further, Plaintiff does not allege he suffered any harm from Defendant Sanchez’s response. 6 See Jett, 439 F.3d at 1096 (recognizing the plaintiff must show both “(a) a purposeful act 7 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by 8 the indifference.”). Thus, these latter allegations involving Defendant Sanchez are 9 insufficient to state a claim for deliberate indifference. 10 4. Defendant Huss 11 Defendant Huss is briefly mentioned in Count 3. [Id. ¶ 25.] Plaintiff alleges on 12 March 2, 2024, he self-mutilated his left arm, and “while in TTA-medical under wound 13 care,” Defendant Huss responded by issuing Plaintiff a “Restrictive Housing Unit (RHU) 14 Administrative Segregation (Ad-Seg) lock up order” for the night and also informed 15 Plaintiff a doctor would clear him the next morning. [Id.] Plaintiff does not allege 16 Defendant Huss disregarded an excessive risk to his health or safety. To the contrary, 17 Plaintiff acknowledges he was receiving “wound care” for his existing laceration when 18 Defendant Huss responded by issuing him a lock up order in RHU Ad-Seg. [Id.] Further, 19 Plaintiff does not allege he suffered any harm from being moved to RHU Ad-Seg. See Jett, 20 439 F.3d at 1096. Thus, Plaintiff fails to a claim a plausible claim for deliberate indifference 21 against Defendant Huss. 22 5. Defendant Barletto 23 In Count 3, Plaintiff alleges while he was in RHU Ad Seg, Defendant Barletto came 24 to Plaintiff’s door and inquired about his mental state on two separate occasions. [Id. ¶ 26.] 25 On March 3, 2024, Plaintiff told Barletto of his “thoughts and urge to cut,” and Plaintiff 26 remained in RHU Ad Seg that night. When Defendant Barletto returned the following 27 morning, Plaintiff reiterated his urge to cut himself to which Defendant Barletto responded, 28 “I can’t hold your hand or put you in a rubber room.” [Id.] Plaintiff was later taken back to 1 his cell where he had access to sharp objects and engaged in self-mutilation on four 2 subsequently occasions in March 2024. [Id. ¶ 27.] These allegations, if presumed true, are 3 “sufficient to warrant ordering [Defendant] to file an answer.” Wilhelm v. Rotman, 680 4 F.3d 1113, 1116 (9th Cir. 2012). 5 6. Defendant Beltran 6 As discussed above, the Court previously summarized Plaintiff’s allegation against 7 Defendant Beltran in the prior complaints and permitted Plaintiff to continue to prosecute 8 Count 2 from his FAC. [ECF Nos. 6, 22, 23.] As Plaintiff reiterates the same allegations 9 against Defendant Beltran in Count 2 of his SAC, the Court finds Plaintiff’s allegations in 10 Count 2 are sufficient to state a plausible claim against Defendant Beltran. Thus, the Court 11 focuses its analysis on Plaintiff’s new allegations against Defendant Beltran in the SAC. 12 In Count 1, Plaintiff alleges Defendant Beltran approved Plaintiff’s return to his cell 13 that contained sharp objects, following a self-mutilation incident in a classroom, which 14 Plaintiff had explained to Defendant Beltran to be a trigger setting for self-harm. [ECF No. 15 30-1 ¶10.] Plaintiff alleges despite Defendant Beltran’s knowledge about settings which 16 increase his likelihood of self-harm, Defendant Beltran still cleared him to return to his cell 17 where he had access to sharp objects. [Id.] Therefore, as plead, Plaintiff plausibly states a 18 cause of action for deliberate indifference in Count 1. 19 In Count 3, Plaintiff alleges on four separate occasions in March 2024, Defendant 20 Beltran cleared Plaintiff to return to his cell following a self-mutilation incident without 21 removing the object used to inflict the laceration, and Plaintiff self-harmed. [Id. ¶ 27.] 22 Taken as true, Plaintiff sufficiently alleges a claim against Defendant Beltran for deliberate 23 indifference in Count 3 to survive screening. 24 7. Defendants Moreno and Boyd 25 The Court previously found Plaintiff plausibly stated an Eighth Amendment claim 26 for relief based his allegations in Count 2 of FAC involving Defendants Moreno and Boyd. 27 [ECF Nos. 6, 22.] In the SAC, Defendants Moreno and Boyd are only mentioned in Count 28 2, which is virtually identical to his allegations in Count 2 of the FAC. Plaintiff’s re-alleged 1 claims involving Defendants Moreno and Boyd likewise continue to plausibly state Eighth 2 Amendment claims for relief if presumed true, and therefore remain “sufficient to warrant 3 ordering [those Defendants] to file an answer.” [ECF No. 6 at 7‒8; ECF No. 22 at 2, citing 4 Wilhelm, 680 F.3d at 1116.] 5 IV. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 6 An “amended complaint supersedes the original, the latter being treated thereafter 7 as non-existent.” Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). 8 Where a plaintiff’s second amended complaint supersedes the first amended complaint, 9 both the original complaint and the first amended complaint have “ceased to exist” and “no 10 longer perform[] any function.” Id. (citation omitted). Further, where a pending motion 11 targets a complaint that is no longer in effect, the motion becomes moot. Id. 12 Here, Defendants Beltran, Boyd, and Moreno have moved for summary judgment 13 of claims asserted in Plaintiff’s FAC. [ECF No. 43.] In light of the undersigned’s 14 recommendations above to grant in part Plaintiff’s motion and deem the SAC filed, the 15 Court finds Defendants’ motion for summary judgment is moot. See Ramirez, 806 F.3d at 16 1008; Lambert v. Huertas, No. 19-cv-5980, 2021 WL 1221467, at *1 (W.D. Wash. Mar. 17 1, 2021), report and recommendation adopted, No. 19-cv-05980, 2021 WL 1172046 (W.D. 18 Wash. Mar. 29, 2021) (finding moot the defendants’ motions for summary judgment to the 19 first amended complaint where the court directed the plaintiff to file a complete second 20 amended complaint); Nelson v. City of Los Angeles, No. 11-cv-5407, 2015 WL 1931714, 21 at *22 (C.D. Cal. Apr. 28, 2015) (“Plaintiffs will be permitted to file a second amended 22 complaint amending their claims against certain City and County Defendants, and the 23 summary-judgment motions therefore should be denied without prejudice to their 24 reassertion based on the amended complaint.”); Farkas v. Gedney, 2014 WL 5782788 (D. 25 Nev. Nov. 6, 2014) (“[B]ecause granting [the plaintiff’s] motion for leave to amend will 26 alter the scope of defendants’ now-filed motion for summary judgment, defendants’ motion 27 for summary judgment is denied without prejudice, subject to re-filing based on the scope 28 of the soon-to-be amended complaint.”). Accordingly, the undersigned RECOMMENDS 1 Defendants’ motion for summary judgment be denied without prejudice subject to refiling 2 as appropriate based on the operative pleading. 3 V. CONCLUSION AND RECOMMENDATION 4 The Court submits this Report and Recommendation to United States District Judge 5 Andrew G. Schopler under 28 U.S.C. § 636(b) and Civil Local Rules 72.1(c) and 72.3 of 6 the United States District Court for the Southern District of California. For the reasons set 7 forth above, IT IS HEREBY RECOMMENDED the District Judge issue an Order: 8 1. APPROVING and ADOPTING this Report and Recommendation. 9 2. GRANTING IN PART and DENYING IN PART Plaintiff’s motion for 10 leave to file a Second Amended Complaint [ECF No. 30] as follows: 11 a. Plaintiff’s motion be GRANTED as to Plaintiff’s proposed 12 amendments related to Defendants Sanchez, Huss, and Barletto; and 13 b. Plaintiff’s motion be DENIED as to Defendants Gates and CDCR. 14 3. ORDERING Plaintiff’s Second Amended Complaint, ECF No. 30-1, be 15 DEEMED FILED with paragraphs 3–7 STRICKEN. 16 4. DISMISSING all claims alleged in the Second Amended Complaint against 17 Defendants CDCR, Gates, and Huss based on Plaintiff’s failure to state a 18 plausible claim for relief pursuant to 28 U.S.C. § 1915(e)(2)(B) and 19 DIRECTING the Clerk of the Court to terminate Defendants CDCR, Gates, 20 and Huss as parties to this action. 21 5. DIRECTING the Clerk to issue a summons as to Plaintiff’s Second Amended 22 Complaint upon Defendants Sanchez and Barletto and forward it to Plaintiff 23 along with two (2) blank U.S. Marshal Form 285s. In addition, the Clerk will 24 provide Plaintiff with a copy of this Order, a certified copy of his Second 25 Amended Complaint, and the summons so he may serve these Defendants. 26 Upon receipt of this “IFP Package,” Plaintiff must complete each U.S. 27 Marshal Form 285 as completely and accurately as possible, include an 28 address where each of these Defendants may be served, see S.D. Cal. Civ. 1 L.R. 4.1.c, and return them to the United States Marshal according to the 2 instructions the Clerk provides in the letter accompanying his IFP package. 3 6. ORDERING, within fifteen (15) days of receipt of the U.S. Marshal Form 4 285s, the U.S. Marshal to serve a copy of Plaintiff’s Second Amended 5 Complaint and summons upon Defendants Sanchez and Barletto at the 6 addresses provided by Plaintiff on each USM Form 285 provided, and to file 7 executed waivers of personal service upon Defendants Sanchez and Barletto 8 with the Clerk of Court as soon as possible after their return. Should 9 Defendants Sanchez and Barletto fail to return the U.S. Marshal’s request for 10 waiver of personal service within 30 days, the U.S. Marshal must instead file 11 the completed, but unexecuted Form USM 285 Process Receipt and Return 12 with the Clerk of Court, include the date the summons, Second Amended 13 Complaint, and request for waiver was mailed, and indicate why service upon 14 that Defendant was not completed. All costs of service will be advanced by 15 the United States; however, if Defendants Sanchez and Barletto are located 16 within the United States, and fail without good cause to sign and return the 17 waiver requested by the Marshal on Plaintiff’s behalf, the Court will impose 18 upon Defendants any expenses later incurred in making personal service. See 19 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 20 7. ORDERING Defendants Sanchez and Barletto once served, to reply to 21 Plaintiff’s Second Amended Complaint, and any subsequent pleading Plaintiff 22 may file in this matter in which they are named as Defendants, within the time 23 provided by the applicable provisions of Federal Rule of Civil Procedure 12(a) 24 and 15(a)(3). See 42 U.S.C. § 1997e(g)(2). 25 8. ORDERING Plaintiff, after service has been made by the U.S. Marshal, to 26 serve upon Defendants Sanchez and Barletto, or if appearance has been 27 entered by counsel, upon Defendants’ counsel, a copy of every further 28 pleading, motion, or other document submitted for the Court’s consideration 1 pursuant to Fed. R. Civ. P. 5(b). Plaintiff must include with every original 2 document he seeks to file with the Clerk of the Court a certificate stating the 3 manner in which a true and correct copy of that document was served on 4 Defendants Sanchez and Barletto, or their counsel, and the date of that service. 5 See S.D. Cal. CivLR 5.2. Any document received by the Court which has not 6 been properly filed with the Clerk, or which fails to include a Certificate of 7 Service upon Defendants once they have been served, may be disregarded. 8 9. REQUIRING Defendants Beltran, Boyd, and Moreno to respond to 9 Plaintiff's Second Amended Complaint within fourteen (14) days of an Order 10 on this Recommendation. 11 10. DENYING WITHOUT PREJUDICE Defendants’ motion for summary 12 judgment. [ECF No. 43.] 13 IT IS HEREBY ORDERED any party to this action may file written objections 14 || with the Court and serve a copy on all parties no later than October 30, 2024. The 15 |}document should be captioned “Objections to Report and Recommendation.” 16 IT IS FURTHER ORDERED any Reply to the Objections shall be filed with the 17 || Court and served on all parties no later than fourteen (14) days after being served with 18 || written objections. 19 IT IS SO ORDERED. 20 ||Dated: October 16, 2024 WMibwla tM. ser 1 HON. MICHELLE M. PETTIT United States Magistrate Judge 22 23 24 25 26 27 28