Baca v. Biter
Filing
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ORDER Denying CDCR'S 20 Motion to Quash Subpoena; ORDER Granting Plaintiff's 21 Motion to File Second Amended Complaint and Order after Screening of Second Amended Complaint; Clerk of Court to File Exhibit A, Filed at ECF No. 21-3, as "Second Amended Complaint" CDCR to Respond to Subpoena within Ten (10) Days; Plaintiff to File Third Amended Complaint within Thirty (30) Days of Receiving Response to Subpoena signed by Magistrate Judge Michael J. Seng on 09/19/2017. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FRANK BACA ,
Plaintiff,
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CASE NO. 1:15-cv-01916-MJS (PC)
ORDER DENYING CDCR’S MOTION TO
QUASH SUBPOENA
v.
(ECF No. 20)
MARTIN BITER, et al.,
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ORDER GRANTING PLAINTIFF’S
MOTION TO FILE SECOND AMENDED
COMPLAINT AND ORDER AFTER
SCREENING OF SECOND AMENDED
COMPLAINT
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(ECF No. 21)
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CLERK OF COURT TO FILE EXHIBIT A,
FILED AT ECF NO. 21-3, AS “SECOND
AMENDED COMPLAINT”
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Defendants.
CDCR TO RESPOND TO SUBPOENA
WITHIN TEN (10) DAYS
PLAINTIFF TO FILE THIRD AMENDED
COMPLAINT WITHIN THIRTY (30) DAYS
OF RECEIVING RESPONSE TO
SUBPOENA
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I.
Procedural History
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Plaintiff is a state prisoner proceeding in forma pauperis with appointed counsel in
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this civil rights action brought pursuant to 42 U.S.C. § 1983. He has consented to
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Magistrate judge jurisdiction. (ECF No. 5.) No other parties have appeared.
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On November 15, 2016, while Plaintiff was proceeding pro se, the Court screened
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his first amended complaint (“FAC”) and found that it stated cognizable claims against
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Defendant Does 1-3, medical professionals at Kern Valley State Prison (“KVSP”), and
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Does 4-18, members of the Headquarters Utilization Management Committee (“HUMC”)
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employed by the California Department of Corrections and Rehabilitation (“CDCR”) for
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failing to treat Plaintiff for diagnosed Hepatitis C virus (“HCV”) in violation of the Eighth
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Amendment. (ECF No. 10.)
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The Court opened discovery for the limited purpose of identifying the names of
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the Doe Defendants. (Id.) Plaintiff was directed to inform the Court of the documents
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needed from CDCR or the prison to identify the Doe Defendants. (Id.)
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On March 3, 2017, Plaintiff, through his newly appointed counsel, filed a request
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for the issuance of a subpoena duces tecum directed to Plaintiff’s current institution,
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High Desert State Prison (“HDSP”), to produce portions of Plaintiff’s medical record, and
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another to CDCR for a complete roster of HUM Committee members from January 1,
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2010 to January 7, 2015. (ECF No. 13.) On April 25, 2017, the Court granted in part
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Plaintiff’s request for the names of the HUMC members, and issued a subpoena for the
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names of the individuals currently serving on the HUMC since they had been sued in
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their official capacities. (On April 26, 2017, Plaintiff informed the Court he had received
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his medical record from HDSP, and so requested that that subpoena be voided. (ECF
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No. 16.) His latter request was granted. (ECF No. 17.))
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On June 12, 2017, the CDCR, as a party in interest, filed a motion to quash the
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subpoena for the names of the HUMC members. (ECF No. 20.) Plaintiff did not file an
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opposition; rather, on July 7, 2017, he filed a motion for leave to file a second amended
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complaint (“SAC”), stating therein that the proposed SAC would render the CDCR’s
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motion to quash moot. (ECF No. 21.) The CDCR filed an opposition. (ECF No. 22.)
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Plaintiff filed a reply. (ECF No. 23.) Both matters are submitted and will be addressed
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here without oral argument. Local Rule 230(l).
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II.
Motion to Amend
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A.
Legal Standard
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A party may amend its pleading once as a matter of course at any time before a
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responsive pleading is served and up to twenty-one days after service of a responsive
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pleading. Fed. R. Civ. P. 15(a)(1)(B). Otherwise, a party may amend only by leave of
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the court or by written consent of the adverse party, and leave shall be freely given when
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justice so requires. Fed. R. Civ. P. 15(a)(2). In this case, Plaintiff has already amended
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once, pursuant to the Court’s screening order. (See ECF No. 6.) Therefore, Plaintiff may
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not file a SAC without leave of court. Furthermore, as Plaintiff is a prisoner proceeding in
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forma pauperis, under 28 U.S.C. § 1915A(a), the Court is required to screen his
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complaint prior to service.
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Local Rule 220 requires that an amended complaint be complete in itself without
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reference to any prior pleading. As a general rule, an amended complaint supersedes
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the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).
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“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice
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so requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th
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Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). In determining whether to grant leave to
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amend, courts generally consider four factors: (1) bad faith, (2) undue delay, (3)
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prejudice to the opposing party, and (4) futility of amendment. In re Korean Airlines Co.,
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Ltd., 642 F.3d 685, 701 (9th Cir. 2011) (citing Kaplan v. Rose, 49 F.3d 1363, 1370 (9th
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Cir. 1994)) (quotation marks omitted); also Foman v. Davis, 371 U.S. 178, 182 (1962);
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Waldrip v. Hall, 548 F.3d, 729, 732 (9th Cir. 2008); AmerisourceBergen Corp. v. Dialysis
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West, Inc., 465 F.3d 946, 951 (9th Cir. 2006); Eminence Capital, LLC, 316 F.3d at 1052.
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In evaluating whether a proposed amendment is futile, the Court must determine
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whether the amendment would withstand a motion to dismiss under Federal Rule of Civil
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Procedure 12(b)(6), and in making this evaluation, the Court is confined to review of the
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proposed amended pleading. Nordyke v. King, 644 F.3d 776, 788 n.12 (9th Cir. 2011)
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(citing Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (reh’g en banc
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Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012).
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Prejudice to the opposing party carries the greatest weight, and absent prejudice,
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or a strong showing of any of the remaining factors, there exists a presumption in favor
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of granting leave to amend. Eminence Capital, LLC, 316 F.3d at 1052 (quotation marks
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omitted).
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B.
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At the time the FAC was filed, Plaintiff was incarcerated at KVSP in Delano,
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California and infected with genotype 1 HCV. He sued Does 1 through 3, physicians and
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primary care providers (“medical staff”) employed by the California Department of
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Corrections and Rehabilitation (“CDCR”) at KVSP, and Does 4 through 18, members of
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the Headquarters Utilization Management Committee (“HUMC”) employed by CDCR
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(collectively, “Defendants”). He alleged:
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responsible for Plaintiff’s medical care. Does 4 through 18 were responsible for the
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implementation of CDCR policies regarding inmate medical care. Defendants violated
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Plaintiff’s right to be free from inhumane conditions of confinement under the Eighth
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Amendment by refusing to prescribe Plaintiff Harvoni (or a similar medication) even
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though it has been shown to be 99% effective in curing patients with HCV. Although not
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directly involved in Plaintiff’s treatment, Does 4 through 18 violated Plaintiff’s rights by
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promulgating a policy dictating that inmates may receive treatment for HCV only after
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their disease has advanced to at least stage 3. Plaintiff alleges that individuals at stage
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3 have already begun to experience cirrhosis of the liver and/or liver failure.
Allegations in Plaintiff’s FAC
Does 1 through 3 were each directly
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The undersigned found Plaintiff’s complaint stated cognizable claims against
Does 1-3 in their personal capacities and Does 4-18 in their official capacities.
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C.
Allegations in Proposed SAC
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Plaintiff is now incarcerated at HDSP. He names as Defendants Drs. Schaeffer
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and Akanno of KVSP (in their individual capacities), Dr. Bzoskie of HDSP (in his
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individual and official capacity), and Does 1-6. Plaintiff also sues the HUMC (in its official
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capacity) and Does 7-20, current or former members of the HUMC (in their individual
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capacities.)
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The underlying allegations regarding HCV and the available treatment options
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remain as described in the Court’s previous screening Orders and need not be repeated
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herein. Otherwise, Plaintiff’s essential allegations may be summarized as follows:
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On May 21, 2014, Plaintiff was seen by Dr. Schaeffer for an annual exam.
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Although Dr. Schaeffer knew of Plaintiff’s illness through of review of his medical history,
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she did not order treatment for his HCV. On January 7, 2015, Plaintiff underwent an in-
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depth medical assessment in which his medical history, tests, and symptoms were
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discussed and lab tests were ordered. On February 25, 2015 Plaintiff saw a nurse to
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discuss his test results. It was determined that Plaintiff was ineligible for HCV treatment.
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On March 8, 2015, Plaintiff was seen by a nurse practitioner regarding an appeal he filed
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concerning his HCV treatment. He was again denied treatment. On May 28, 2015,
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Plaintiff saw Dr. Akanno for a wellness visit and tests were again ordered. Plaintiff
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brought up his HCV symptoms with Dr. Akanno, however he was again refused
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treatment. On June 15, 2015, Dr. Akanno reviewed Plaintiff’s test results, and Plaintiff
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was again denied treatment. On December 21, 2015, after he was transferred to HDSP,
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Plaintiff was seen by Dr. Bzoskie, who also failed to prescribe Plaintiff medication to treat
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his HCV. Does 1-6 are other medical professionals, currently unknown to Plaintiff, who
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were involved in his treatment or denial thereof at either KVSP or HDSP.
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Does 7-20 are members of the HUMC. This committee is responsible for
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developing policies and procedures to ensure statewide adherence to a utilization
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management program. As members of the HUMC, these Defendants develop California
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Correctional Health Care Services (“CCHCS”) policies. The HUMC members know that
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HCV constitutes a serious medical need that, left untreated, can lead to permanent liver
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damage and death. Despite this, these Defendants set forth a policy which has the
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intended effect of denying Plaintiff access to effective treatments for his HCV.
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Plaintiff alleges four causes of action: 1) a claim for damages against Defendants
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Schaeffer, Akanno, and Bzoskie and doctor Does 1-6 for cruel and unusual punishment
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in violation of the Eighth and Fourteenth Amendments; 2) a claim for damages against
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HUMC members Does 7-20 for cruel and unusual punishment in violation of the Eighth
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and Fourteenth Amendments; 3) a claim for injunctive relief against the HUMC, Dr.
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Bzoskie, and Does 1-6; and 4) a claim for damages for negligence against all
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Defendants.
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D.
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Plaintiff argues that amendment is appropriate because he now has the benefit of
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Discussion
counsel who can identify additional claims arising from Plaintiff’s allegations.
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The CDCR, as a party in interest, argues that Plaintiff’s motion to amend should
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be denied as futile with regard to the second, third, and fourth causes of action because
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the claims would be subject to dismissal for failure to state a claim, Eleventh Amendment
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immunity, qualified immunity, and failure to exhaust administrative remedies.
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At the pleading stage, Plaintiff’s allegations that Defendants were deliberately
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indifferent to a substantial risk to Plaintiff’s health when they refused to prescribe
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medication to treat his HCV and/or enacted blanket policies intended to deny treatment
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to an inmate in Plaintiff’s position are more than sufficient to state a claim under the
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Eighth Amendment. While the HUMC itself is immune from suit under the Eleventh
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Amendment, Wolfson v. Brammer, 616 F.3d 1045, 1065-66 (9th Cir. 2010), dismissal of
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the entire SAC on these grounds is not warranted. As Plaintiff’s allegations at the
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pleading stage are sufficient to allege constitutional violation, and there are insufficient
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facts from which the Court can determine that the HUMC members’ actions were
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reasonable under clearly established law, a finding of qualified immunity cannot be made
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at this time. Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (“The doctrine of
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qualified immunity protects government officials ‘from liability for civil damages insofar as
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their conduct does not violate clearly established statutory or constitutional rights of
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which a reasonable person would have known.’”) (quoting Pearson v. Callahan, 555 U.S.
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223, 231 (2009)).
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The CDCR argues that since Plaintiff does not plead compliance with California=s
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Tort Claims Act, his state law negligence claim is barred for failure to exhaust
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administrative remedies. The state Tort Claims Act requires that a tort claim against a
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public entity or its employees be presented to the California Victim Compensation and
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Government Claims Board (“the Board”) no more than six months after the cause of
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action accrues. Cal. Govt. Code '' 905.2, 910, 911.2, 945.4, 950-950.2 (West 2009).
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Presentation of a written claim, and action on or rejection of the claim are conditions
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precedent to suit. State v. Super. Ct. of Kings Cty. (Bodde), 90 P.3d 116, 124 (2004);
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Mangold v. California Pub. Utils. Comm=n, 67 F.3d 1470, 1477 (9th Cir. 1995).
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Plaintiff seeks leave to amend his complaint to plead facts showing that he has
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complied with the Act. (ECF No. 23 at 4.) That request will be granted. Accordingly,
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Defendant’s challenge based on non-compliance with the California Tort Claims Act will
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be denied without prejudice.
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The Court will proceed to screening Plaintiff’s SAC.
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E.
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The Court is required to screen complaints brought by prisoners seeking relief
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against a governmental entity or an officer or employee of a governmental entity. 28
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U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner
Screening of SAC
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has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon
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which relief may be granted, or that seek monetary relief from a defendant who is
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immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). Under section 1983, Plaintiff
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must demonstrate that each defendant personally participated in the deprivation of his
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rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
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Again, inasmuch as the substance and legal standards underlying Plaintiff’s
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claims remain unchanged, the Court will not repeat the analyses contained in its
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previous screening. For the reasons set forth in that order (ECF No. 13), Plaintiff is
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entitled to proceed on his Eighth Amendment medical indifference claims against Drs.
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Schaeffer, Akanno, and Bzoskie for denying Plaintiff treatment for his HCV. Plaintiff may
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proceed against these Defendants in their individual capacities only.
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Likewise, Plaintiff will be permitted to proceed against Does 7-20 in their individual
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capacities for implementing a policy that they knew or should have known would place
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an inmate in Plaintiff’s situation at risk of suffering serious harm.
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However, as the CDCR correctly points out, the Eleventh Amendment precludes
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suits against the HUMC itself. Therefore, that claim will be dismissed without leave to
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amend. Furthermore, Plaintiff’s general allegations against Does 1-6 are insufficient to
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link these Defendants to the alleged violations. Leer v. Murphy, 844 F.2d 628, 634 (9th
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Cir. 1988) (plaintiff may not attribute liability to a group of defendants, but must “set forth
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specific facts as to each individual defendant’s” deprivation of his rights.) Plaintiff will be
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granted leave to amend his claims against Does 1-6.
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The proposed SAC omits Plaintiff’s original claim against the HUMC members in
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their official capacities. The Court assumes this is error since, to the extent Plaintiff
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seeks injunctive relief in the form of a change in policy, only those committee members
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currently serving or serving at the time the injunctive relief is granted (if it is granted)
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would be able to effectuate such a change. It is possible that the HUMC members who
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implemented the offending policy are no longer serving, or that the members currently
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serving will not be serving at the conclusion of this case. Suing these members in their
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official capacities allows for their replacements to be automatically substituted into the
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lawsuit should they step down or otherwise relinquish their positions of power. Hafer v.
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Melo, 502 U.S. 21, 25 (1991) (because a suit against a state official in his or her official
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capacity is treated as a suit against the state, in which the “real party in interest . . . is
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the governmental entity and not the named official,” when such named official leaves
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office, “[his or her] successor automatically assumes [his or her] role in the litigation.”)
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Plaintiff will thus be given leave to amend his complaint to re-plead his claim against the
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HUMC members in their official capacities.
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And, as explained above, Plaintiff will also be given an opportunity to amend his
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complaint to plead compliance with the Tort Claims Act with regard to his negligence
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claim.
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III.
Motion to Quash
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A.
Legal Standard
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Rule 45(c)(3)(A)(iii) mandates quashing a subpoena if it “requires disclosure of
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privileged or other protected matter, if no exception or waiver applies[.]” Jennings v.
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Moreland, No. CIV S-08-1305 LKK, 2012 WL 761360, at *1 (E.D. Cal. Mar. 6, 2012).
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In civil rights cases brought under section 1983, questions of privilege are
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resolved by federal law. Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 F.2d
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192, 197 (9th Cir. 1975). “State privilege doctrine, whether derived from statutes or court
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decisions, is not binding on federal courts in these kinds of cases.” Kelly v. City of San
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Jose, 114 F.R.D. 653, 655–56 (N.D. Cal. 1987). “Federal common law recognizes a
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qualified privilege for official information.” Sanchez v. City of Santa Ana, 936 F.2d 1027,
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1033 (9th Cir. 1990) (citing Kerr, 511 F.2d at 198.) The discoverability of official
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documents should be determined under the “balancing approach that is moderately pre-
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weighted in favor of disclosure.” Kelly, 114 F.R.D. at 661. The party asserting the
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privilege must properly invoke the privilege by making a “substantial threshold showing”
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that the privilege should apply. Id. at 669-70.
CDCR’s Arguments
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B.
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The CDCR moves to quash the subpoena seeking names of the HUMC members
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on three grounds: 1) the information sought is irrelevant; 2) it is protected by the official
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information privilege; and 3) it is protected by the deliberative process privilege. As to the
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first point, the CDCR argues that since the HUMC works as a unit, no single HUMC
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member can appropriately respond to Plaintiff’s request for injunctive relief and so the
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identities of each member are irrelevant. On the second point, CDCR argues that the
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identities of the HUMC committee members, all private citizens, must be protected to
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ensure their safety and encourage their open and candid participation in the committee.
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To their third point, CDCR argues that “it is clear” Plaintiff seeks the names of the
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individual HUMC members in order to obtain information regarding their individual
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advisory or “pre-decisional” opinions as well as information about the HUMC decision-
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making process.
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C.
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The CDCR argues that the names of the individual HUMC members are irrelevant
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since no single person can effectuate policy. However, as the CDCR itself pointed out,
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HUMC as a unit is immune from suit. If Plaintiff is foreclosed from proceeding against the
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HUMC members, he would be foreclosed from pursuing a 1983 claim for promulgation
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an unconstitutional policy. Regardless, Plaintiff has indicated an intent to amend his
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complaint to include claims against the HUMC members in their individual capacities.
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Each member’s name is therefore relevant.
Discussion
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CDCR’s arguments regarding privilege are not persuasive. “[A] party moving to
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quash a subpoena on the grounds of confidentiality or privilege [is required] to provide
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detailed, case-specific reasons why a complete bar to the disclosure of relevant material
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is the only viable option in responding to the subpoena.” Jennings, 2012 WL 761360 at
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*2. The CDCR has not done that here. The CDCR claims generally that disclosing the
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names of HUMC members could subject them to harassment, threats from inmates, or
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other adverse actions, thereby chilling them from effectively performing their duties.
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However, a party resisting disclosure on privilege grounds “must specifically describe
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how disclosure of the requested documents in that particular case . . . would be harmful.”
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Chism v. Cty. of San Bernadino, 159 F.R.D. 531, 535 (C.D. Cal. Dec. 23, 1994)
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(emphasis added). A general assertion that HUMC members would be chilled from
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performing their job functions if their identities were disclosed is insufficient.
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Furthermore, as explained above, the HUMC members are properly named as
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Defendants in this action, and thus, the need to identify and serve them outweighs any
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interest of the CDCR in keeping their identities secret.
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Finally, the deliberative process privilege exempts from discovery information
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reflecting opinions, recommendations, and deliberations comprising part of a process by
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which government decisions and policies are formulated. FTC v. Warner Comm's., Inc.,
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742 F.2d 1156, 1161 (9th Cir.1984). The purpose of the privilege is to shield from public
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scrutiny any ideas, thoughts, or opinions that are expressed in the process of formulating
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governmental policies. Assembly of California v. United States Dep’t of Commerce, 968
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F.2d 916, 920 (9th Cir. 1992). The key inquiry in determining whether particular
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information is “deliberative” is whether disclosure of the information would expose the
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decision-making process in such a way as to discourage candid discussion within the
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agency and thereby undermine the agency's ability to perform its functions. Carter v.
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United States DOC, 307 F.3d 1084, 1090 (9th Cir. 2002). At this stage in the litigation,
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Plaintiff seeks not evidence of the HUMC deliberations, but rather the names of the
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HUMC members. He seeks not to challenge the deliberative process, but the conclusion
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reached. The deliberative process privilege does not apply.
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For the foregoing reasons, the CDCR’s motion to quash will be denied, and the
CDCR will be directed to respond as ordered in ECF No. 15 within ten days.
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(Among the relief sought in Plaintiff’s SAC is a possible preliminary injunction
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request. (ECF No. 21-3 at 11.) He has not, however, even addressed, much less
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demonstrated compliance with, the prerequisites to such relief Winter v. Natural
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Resources Defense Council, Inc., 555 U.S. 7, 20 (2008), so the Court will not analyze
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the issue at this juncture of the pleadings.)
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IV.
Conclusion and Order
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Based on the foregoing, it is HEREBY ORDERED that:
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1. The CDCR’s motion to quash the subpoena duces tecum (ECF No. 20) is
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DENIED;
2. The CDCR is ordered to serve a response to the subpoena duces tecum on
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Plaintiff’s counsel within ten (10) days of this order;
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3. Plaintiff’s motion to amend (ECF No. 21) is GRANTED;
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4. The Clerk of Court is directed to file the document filed at ECF No. 21-3 as a
separate docket entry entitled “SECOND AMENDED COMPLAINT”; and
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5. Plaintiff is DIRECTED to file a third amended complaint identifying, to the
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extent possible, the Doe Defendants by name and curing the deficiencies
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noted herein within thirty (30) days of receiving the CDCR’s response to the
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subpoena duces tecum.
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IT IS SO ORDERED.
Dated:
September 19, 2017
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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