Crayon v. Hill et al

Filing 55

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/8/2014 DIRECTING the Clerk to assign a district judge to this action; GRANTING plaintiff's 39 motion to submit proof of exhaustion of administrative re medies; DENYING plaintiff's 40 request that defendants provide proof or admit his heart disease; plaintiff's 53 motion to dismiss is construed as plaintiff's opposition to Stocker's motion to dismiss; defendants' 43 motion to dismiss is GRANTED with leave to amend as to the claims against defendant Hill, as stated in this order; plaintiff is GRANTED 30 days to file a second amended complaint, if plaintiff does not file a second amended complaint, defendant Wa ng will be required to respond to plaintiff's allegations in the first amended complaint within the deadlines stated in Fed. R. Civ. P. 12(a)(1); if plaintiff files a second amended complaint, defendants shall not respond to the second amende d complaint until ordered by the court; and RECOMMENDING that defendants' 38 , 43 motions to dismiss be granted as to all claims against defendant Stocker and plaintiff's cover-up claim against Hill; defendants' motion to dismiss be denied as to plaintiff's claims against defendant Wang. Assigned and Referred to Judge Morrison C. England, Jr.; Objections due within 14 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES E. CRAYON,

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Plaintiff,

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v.

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No. 2:13-cv-0350 KJN P
ORDER AND FINDINGS AND
RECOMMENDATIONS

RICK HILL, et al,

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Defendants.

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Introduction

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is the motion to dismiss filed on behalf of

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defendant Stocker (ECF No. 38), and the motion to dismiss filed on behalf of defendants Hill and

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Wang (ECF. No. 43). Defendants move to dismiss for failure to state a claim pursuant to Federal

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Rule of Civil Procedure 12(b)(6). For the following reasons, the undersigned orders that

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defendants’ motion be granted with leave to amend, in part, as to defendant Hill, and recommends

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that defendants’ motion be granted without leave to amend as to defendant Stocker and, in part, as

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to defendant Hill. The undersigned recommends that defendants’ motion be denied as to

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defendant Wang.

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Legal Standard

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Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for

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“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In

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considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court

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must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89

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(2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir.

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1999). Still, to survive dismissal for failure to state a claim, a pro se complaint must contain more

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than “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a

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cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim

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upon which the court can grant relief must have facial plausibility. Twombly, 550 U.S. at 570.

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

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U.S. at 678. Attachments to a complaint are considered to be part of the complaint for purposes

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of a motion to dismiss for failure to state a claim. Hal Roach Studios v. Richard Reiner & Co.,

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896 F.2d 1542, 1555 n.19 (9th Cir. 1990).

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A motion to dismiss for failure to state a claim should not be granted unless it appears

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beyond doubt that the plaintiff can prove no set of facts in support of his claims which would

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entitle him to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). In general, pro se

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pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner,

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404 U.S. 519, 520 (1972). The court has an obligation to construe such pleadings liberally. Bretz

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v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). However, the court’s liberal

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interpretation of a pro se complaint may not supply essential elements of the claim that were not

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pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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Plaintiff’s Claims

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This action is proceeding on the first amended complaint. (ECF No. 15.) Named as

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defendants are Nurse Wang, Warden Hill and Health Care Appeal Coordinator Stocker. Plaintiff

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alleges that on or around July 7, 2012, he filed a grievance against defendant Wang for ignoring

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him and speaking to him in a hateful voice. (Id. at 5.) Plaintiff began refusing to take medication

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from defendant Wang because he was afraid that defendant Wang might do something to him.

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(Id.) On July 8, 2012, plaintiff filed another grievance against defendant Wang. (Id.) In this

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grievance, plaintiff wrote that he was refusing to allow defendant Wang to give him insulin

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injections or any other medication. (Id. at 44.)

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On July 11, 2012, all diabetic inmates, including plaintiff, were released from their cells to

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get their medication. (Id. at 6.) Defendant Wang asked plaintiff why he refused to take his

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medication and insulin shots from defendant. (Id.) Plaintiff replied that he did not trust

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defendant. (Id.)

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Plaintiff alleges that defendant Wang then gave him his medication in a cup. (Id.) When

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plaintiff returned to his cell, he became ill and was taken to the emergency room. (Id. at 6-7.)

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Plaintiff alleges that the doctor at the emergency room told plaintiff that he had been given

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medication that diabetics are not supposed to take. (Id.) Plaintiff alleges that defendant Wang

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gave him the wrong medication in retaliation for plaintiff filing grievances against him. (Id.)

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Plaintiff alleges that defendant Stocker rejected or cancelled all of his grievances

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regarding defendant Wang. (Id. at 8.) Plaintiff alleges that during an interview regarding the

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incident involving plaintiff’s receipt of the wrong medication, defendant Stocker asked plaintiff

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what he wanted defendant Stocker to do about the situation. (Id.) Plaintiff stated that he wanted

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defendant Wang to be terminated. (Id.) Defendant Stocker responded that defendant Wang was

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not going anywhere. (Id.) Plaintiff asked defendant Stocker for a copy of his toxicology report

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and the neurology report from the hospital where he was treated. Defendant Stocker told plaintiff

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to get these documents from his doctor. (Id. at 8-9.) Plaintiff alleges that defendant Stocker tried

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to cover up the retaliatory acts of defendant Wang by rejecting plaintiff’s grievances. (Id. at 9.)

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Plaintiff alleges that he informed defendant Hill about the incident involving defendant

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Wang but received no response. (Id. at 10.) Plaintiff alleges that he was placed in a cell in the

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top bunk in the back by the shower with the rats, bats, feces, and mold. (Id.) Plaintiff alleges that

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because of his health problems, including seizures, he is supposed to be in a cell, on the bottom

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bunk, near the front. (Id.) Plaintiff alleges that he notified defendant Hill several times about

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these conditions. (Id.) Plaintiff alleges that defendant Hill left him in the back cell because

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plaintiff filed a staff complaint and made verbal complaints to the sergeant. (Id.)

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The undersigned finds that plaintiff’s amended complaint alleges the following claims for
relief: 1) violation of the Eighth Amendment right to adequate medical care against defendant

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Wang; 2) retaliation against defendant Wang; 3) violation of the Eighth Amendment right to

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adequate medical care against defendant Hill; 4) violation of the Eighth Amendment right to

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hygienic conditions of confinement against defendant Hill; 5) retaliation against defendant Hill;

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6) conspiracy to cover-up defendant Wang’s alleged misconduct against defendant Hill;

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7) conspiracy to cover-up defendant Wang’s alleged misconduct against defendant Stocker; and

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8) failure to properly process grievances in violation of the right to due process against defendant

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Stocker.

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Analysis

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Retaliation Claim Against Defendant Wang

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Plaintiff alleges that defendant Wang retaliated against him for filing administrative

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grievances against him by giving him the wrong medication. Defendants argue that defendant

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Wang is entitled to qualified immunity as to this claim.

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In analyzing a claim of qualified immunity, a court must examine (1) whether the facts as

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alleged, taken in the light most favorable to plaintiff, show that the defendant's conduct violated a

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constitutional right, and (2) if a constitutional right was violated, whether, “in light of the specific

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context of the case,” the constitutional right was so clearly established that a reasonable official

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would understand that what he or she was doing violated that right. See Saucier v. Katz, 533 U.S.

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194, 201–02 (2001). If no constitutional right was violated, the inquiry ends and the defendant

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prevails. Saucier, 533 U.S. at 201.
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To succeed on a First Amendment retaliation claim, a plaintiff must show the following:

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“(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3)

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that prisoner’s protected conduct, ... that such action (4) chilled the inmate’s exercise of his First

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Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

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Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (footnote omitted). Although a

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“chilling effect on First Amendment rights” is enough to state an injury, Gomez v. Vernon, 255

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F.3d 1118, 1127 (9th Cir. 2001), “bare allegations of arbitrary retaliation” are insufficient to state

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a retaliation claim. Rizzo v. Dawson, 778 F.2d 527, 532 n.4 (9th Cir. 1985). Although the timing

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of an official’s action can be circumstantial evidence of retaliation, there must generally be

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something more than simply timing to support an inference of retaliatory intent. See Pratt v.

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Rowland, 65 F.3d 802, 808 (9th Cir. 1995).

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Defendants first argue that plaintiff has not pled sufficient facts in support of his claim

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that defendant Wang gave plaintiff the wrong medication, i.e., took an adverse action. For the

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following reasons, the undersigned disagrees.

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As discussed above, plaintiff alleges that he became ill shortly after taking the medication

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given to him by defendant Wang. Plaintiff also alleges that the doctor at the emergency room

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told him that he was given the wrong medication. Based on these allegations, taking the facts in

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the light most favorable to plaintiff, it is not unreasonable to infer that defendant Wang gave

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plaintiff the wrong medication.

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Defendants argue that the exhibits attached to plaintiff’s amended complaint disprove his

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claim that defendant Wang gave him the wrong medication. Defendants argue that plaintiff has

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attached a letter from the Methodist Hospital’s custodian of records informing plaintiff that no

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toxicology report was conducted. (ECF No. 15 at 62.) Defendants also cite an exhibit stating that

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blood tests revealed that everything was in the normal range except plaintiff’s glucose level,

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which would be expected with a diabetic. (Id. at 29.) Defendants argue that plaintiff’s exhibits

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do not show that he was given the wrong medication.

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The finding that no toxicology report was conducted does not necessarily disprove

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plaintiff’s claim that he was given the wrong medication. Similarly, the finding that “everything
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was normal” on plaintiff’s blood work does not necessarily disprove plaintiff’s claim that he was

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given the wrong medication. Defendants’ argument that plaintiff’s exhibits disprove his claim

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that he was given the wrong medication is without merit.

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Defendants next argue that plaintiff has not pled sufficient facts demonstrating that

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defendant Wang was motivated to retaliate against plaintiff based on his filing of administrative

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grievances. Plaintiff alleges that defendant Wang gave him the wrong medication just days after

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plaintiff filed two administrative grievances against him. Plaintiff also alleges that just before

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giving him the wrong medication on July 11, 2012, defendant Wang asked plaintiff why he

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refused to take his medication and insulin shots from defendant. Plaintiff’s July 8, 2012

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grievance specifically stated that plaintiff was refusing to take medication from defendant.

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While defendant Wang may have known about plaintiff’s refusal to take medication from

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him based on plaintiff’s own conduct, taking the facts in the light most favorable to plaintiff, it is

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not unreasonable to infer that he knew about plaintiff’s refusal based on knowledge of plaintiff’s

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July 8, 2012 grievance. Plaintiff’s allegations regarding the timing of his receipt of the allegedly

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wrong medication combined with defendant Wang’s statement which, taken in the light most

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favorable to plaintiff, reflected knowledge of the July 8, 2012 grievance, state a facially plausible

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claim of retaliatory motive.

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Turning to the second prong of the qualified immunity analysis, the undersigned finds that

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a reasonable official would have known that intentionally giving plaintiff the wrong medication in

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retaliation for filing grievances violated plaintiff’s constitutional rights.

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Accordingly, for the reasons discussed above, the undersigned recommends that
defendants’ motion to dismiss plaintiff’s retaliation claim against defendant Wang be denied.

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Eighth Amendment Claim Against Defendant Wang

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Plaintiff’s Eighth Amendment claim against defendant Wang is virtually identical to his

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retaliation claim. Plaintiff alleges that defendant Wang intentionally gave him the wrong

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medication in retaliation for plaintiff’s filing of administrative grievances against him.

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Defendants argue that plaintiff has failed to allege that defendant Wang personally participated in

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any violation of his constitutional rights. In particular, defendants contend that the complaint is
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devoid of any allegation that defendant Wang deprived plaintiff of adequate medical care.

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An Eighth Amendment violation occurs when prison officials are deliberately indifferent

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to a prisoner’s serious medical needs. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.

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2004). To prevail on an Eighth Amendment deliberate indifference claim, a plaintiff “must

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satisfy both the subjective and objective components of a two-part test.” Hallett v. Morgan, 296

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F.3d 732, 744 (9th Cir. 2002). The objective component requires a plaintiff to show that a prison

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official deprived the plaintiff of the “minimal civilized measures of life's necessities.” Id.

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(citation omitted). The subjective component requires a plaintiff to show that a prison official

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acted with deliberate indifference. Id.

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The objective component requires a demonstration of a deprivation that is “sufficiently

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serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294,

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298 (1991)). In the context of medical care, “a serious medical need is present whenever the

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failure to treat a prisoner's condition could result in further significant injury or the unnecessary

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and wanton infliction of pain.” Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (internal

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citations omitted). However, “[b]ecause society does not expect that prisoners will have

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unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth

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Amendment violation only if those needs are serious.” Hudson v. McMillian, 503 U.S. 1, 9

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(1992) (internal quotation omitted).

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A prison official acts with deliberate indifference, and satisfies the subjective component,

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when “the [official] knows of and disregards an excessive risk to inmate health and safety.”

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Gibson v. Cnty. of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002). Thus, the official must

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“be aware of facts from which the inference could be drawn that a serious risk of harm exists,”

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and the official “must also draw the inference.” Farmer, 511 U.S. at 837. “Mere negligence in

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diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth

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Amendment rights.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (alteration and

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citation omitted), overruled on other grounds WMX Technologies, Inc. v. Miller, 104 F.3d 1133

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(9th Cir. 1997).

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Defendants first argue that plaintiff has not alleged sufficient facts in support of his claim

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that defendant Wang gave him the wrong medication. As discussed above, plaintiff has pled

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sufficient facts from which it may reasonably be inferred that defendant Wang gave him the

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wrong medication.

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Defendants also argue that plaintiff has not pled sufficient facts to support his claim that

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defendant Wang intentionally gave him the wrong medication, which is the theory on which

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plaintiff’s Eighth Amendment claim against defendant Wang is predicated. As discussed above,

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plaintiff has pled sufficient facts to support his claim that defendant Wang intentionally gave him

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the wrong medication in retaliation for his filing of administrative grievances. These allegations

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also state a facially plausible claim for deliberate indifference in violation of the Eighth

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Amendment.

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Turning to the second prong of the qualified immunity analysis, the undersigned finds that

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a reasonable official would have known that intentionally giving plaintiff the wrong medication

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violated plaintiff’s Eighth Amendment constitutional rights.

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Accordingly, for the reasons discussed above, the undersigned recommends that

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defendants’ motion to dismiss plaintiff’s Eighth Amendment claim against defendant Wang be

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denied.

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Claims Against Defendant Hill

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Plaintiff alleges four claims against defendant Hill: 1) defendant Hill conspired to cover-

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up defendant Wang’s alleged misconduct; 2) defendant Hill allowed plaintiff to live in conditions

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that were unsanitary in violation of the Eighth Amendment; 3) defendant Hill allowed plaintiff to

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be housed on an upper bunk in the back in violation of his Eighth Amendment right to adequate

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medical care; and 4) defendant Hill allowed plaintiff to live in these conditions in retaliation for

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plaintiff complaining about them.

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In the motion to dismiss, defendants argue that plaintiff has not adequately linked
defendant Hill to any alleged deprivation.
The court first considers plaintiff’s claim that defendant Hill conspired to cover-up
defendant Wang’s alleged misconduct by ignoring his complaints about defendant Wang.
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Liberally construing plaintiff’s amended complaint, plaintiff’s theory against defendant Hill in

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this claim appears to be that defendant Hill’s failure to investigate his claim against defendant

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Wang interfered with plaintiff’s ability to seek redress against defendant Wang. See, e.g., Delew

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v. Wagner, 143 F.3d 1219, 1222 (9th Cir. 1998) (cover-up could violate Due Process right of

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meaningful access to the courts)

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A cover-up claim is premature when, as here, plaintiff’s action seeking redress for the

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underlying constitutional violations remains pending. See Karim–Panahi v. Los Angeles Police

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Dept., 839 F.2d 621 (9th Cir. 1988) (claim alleging police cover-up of misconduct was premature

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when action challenging misconduct was pending). Plaintiff’s underlying claims against

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defendant Wang are still pending in the instant action. Therefore, plaintiff cannot yet show the

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extent to which he was injured as a result of defendant Wang’s alleged misconduct. Karim-

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Panahi, supra; see also Morales v. City of Los Angeles, 214 F.3d 1151, 1154–55 (9th Cir. 2000)

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(holding that plaintiff’s access to the courts claim “accrued when the alleged police misconduct

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resulted in judgments being entered against [plaintiffs].”); Delew v. Wagner, 143 F.3d 1219,

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1222–23 (9th Cir. 1998) (allegations that defendants deprived plaintiffs of their right of access to

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the courts by “covering up the true facts” of plaintiff’s daughter's death were not ripe for

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adjudication in federal court because plaintiffs’ wrongful death action was still pending in state

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court). Because plaintiff cannot cure the pleading defects discussed above, the cover-up claim

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against defendant Hill should be dismissed.

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Turning to plaintiff’s Eighth Amendment claim alleging unsanitary conditions, a prison

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official cannot be held liable under the Eighth Amendment for denying an inmate humane

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conditions of confinement unless the standard for criminal recklessness is met, i.e., the official

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knows of and disregards an excessive risk to inmate health or safety. Farmer, 511 U.S. at 837.

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The official must both be aware of facts from which the inference could be drawn that a

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substantial risk of serious harm exists, and he must also draw the inference. Id. An Eighth

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Amendment claimant need not show, however, that a prison official acted or failed to act

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believing that harm actually would befall an inmate; it is enough that the official acted or failed to

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act despite his knowledge of a substantial risk of serious harm. Id. at 842. This is a question of
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fact. Id. Deliberate indifference describes a state of mind more blameworthy than negligence.

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Id. at 835 (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Neither negligence nor gross

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negligence will constitute deliberate indifference. Id. at 835–36 & n.4; see also Estelle, 429 U.S.

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at 106 (establishing that deliberate indifference requires more than negligence). Deliberate

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indifference is not shown by merely stating that a defendant should have known of a risk, but

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requires an actual perception of a risk that does not exist merely because a reasonable person

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should have perceived a risk. Farmer, 511 U.S. at 837.

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Plaintiff has not pled adequate facts in support of his claim that defendant Hill knew of the

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alleged unsanitary conditions in his cell. Plaintiff does not specifically allege how defendant Hill

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became aware of the alleged unsanitary conditions. Plaintiff may be claiming that defendant Hill

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became aware of these alleged conditions by way of plaintiff’s staff complaint and verbal

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complaints to the sergeant. However, plaintiff does not describe the grounds of his staff

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complaint and verbal complaints to the sergeant. The exhibits attached to plaintiff’s complaint do

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not demonstrate that defendant Hill had knowledge of the alleged unsanitary conditions. Because

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plaintiff has not pled sufficient facts demonstrating that defendant Hill was aware of the alleged

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unsanitary conditions in his cell, defendants’ motion to dismiss this claim is granted with leave to

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amend. If plaintiff files an amended complaint, he must specifically describe how he informed

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defendant Hill of the alleged unsanitary conditions.
Plaintiff next alleges that he informed defendant Hill that he should not be on a top bunk

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in the back due to his medical problems. For the same reasons the court finds that plaintiff has

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not pled sufficient facts supporting his claim that defendant Hill knew of the alleged unsanitary

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conditions, the court finds that plaintiff has not pled sufficient facts demonstrating that defendant

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Hill knew that plaintiff was in a back cell on the top bunk. Accordingly, this claim is dismissed

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with leave to amend. If plaintiff files an amended complaint, he must specifically allege how he

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informed defendant Hill about his alleged medical problems and his improper placement on a top

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bunk.

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Finally, plaintiff alleges that defendant Hill kept him in the back bunk in retaliation for
plaintiff filing a staff complaint and verbally complaining to the sergeant. This claim of
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retaliation is vague and conclusory. Plaintiff does not allege how defendant Hill knew of his staff

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complaint and verbal complaints. Plaintiff also does not allege how he knows that defendant Hill

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kept him in the back bunk. Accordingly, this claim is dismissed with leave to amend. If plaintiff

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files an amended complaint, he must specifically allege how defendant Hill knew about plaintiff’s

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staff and verbal complaints and his placement in the back bunk. Plaintiff must also allege

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additional facts demonstrating a retaliatory motive by defendant Hill.

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Claims Against Defendant Stocker

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Defendants move to dismiss plaintiff’s claim that defendant Stocker violated his right to

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due process by failing to process his grievances on the grounds that plaintiff has no due process

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right to the administrative grievance process. See Mann v. Adams, 855 F.2d 639-640 (9th Cir.

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1988); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (there is no liberty interest entitling

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inmates to a specific grievance process). Because plaintiff has no due process right to the

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administrative grievance process, defendants’ motion to dismiss this claim should be granted.

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Defendants do not address plaintiff’s claim that defendant Stocker allegedly failed to

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process his grievances as part of a conspiracy to cover-up defendant Wang’s misconduct.

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Nevertheless, the undersigned recommends that this claim be dismissed because it is without

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merit. See 28 U.S.C. § 1915(e)(2) (court may dismiss case at any time if the court determines

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that it fails to state a claim on which relief may be granted).

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Liberally construing plaintiff’s amended complaint, plaintiff’s theory against defendant

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Stocker in this claim appears to be that defendant Stocker’s failure to process his grievances

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regarding defendant Wang interfered with plaintiff’s ability to seek redress against defendant

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Wang. See Delew v. Wagner, supra. Because plaintiff’s underlying claim against defendant

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Wang is still pending in the instant action, plaintiff’s related cover-up claim against defendant

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Stocker is premature. See Karim-Panahi, supra. Accordingly, this claim should be dismissed.

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Because it does not appear that plaintiff can cure the pleading defects discussed above, the

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claims against defendant Stocker should be dismissed without leave to amend.

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Plaintiff’s Motions
On March 21, 2014, plaintiff filed a pleading titled “Dismiss Defendant Stocker Claim

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Against Plaintiff.” (ECF No. 53.) The court construes this document as plaintiff’s opposition to

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defendant Stocker’s motion to dismiss.

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On November 15, 2013, plaintiff filed a motion to submit proof of exhaustion of

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administrative remedies. (ECF No. 39.) Attached are exhibits related to exhaustion of

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administrative remedies. Good cause appearing, plaintiff’s motion to file these documents is

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granted.

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On November 15, 2013, plaintiff filed a motion requesting that defendants provide proof

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or admit plaintiff’s heart disease. (ECF No. 40.) Defendants are not required to provide proof of

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or admit plaintiff’s heart disease. Accordingly, this motion is denied.

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Instructions Regarding Amending Complaint

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If plaintiff does not file a second amended complaint, this action will proceed on his

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claims against defendant Wang found colorable above. If plaintiff files a second amended

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complaint, he should include his claims against defendant Wang as well as those claims against

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defendant Hill on which leave to amend has been granted. Plaintiff should not include his claims

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against defendant Stocker in a second amended complaint.

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Plaintiff is not obliged to amend his complaint. If plaintiff does not file a second amended

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complaint, defendant Wang will be required to respond to plaintiff’s allegations in the first

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amended complaint within the deadlines stated in Fed. R. Civ. P. 12(a)(1). In this event, the court

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will construe plaintiff’s election to proceed forthwith as consent to an order dismissing his

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defective claims against defendant Hill without prejudice.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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2. Plaintiff’s motion to submit proof of exhaustion of administrative remedies (ECF No.

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The Clerk of the Court is directed to assign a district judge to this action;

39) is granted;
3. Plaintiff’s requesting that defendants provide proof or admit his heart disease (ECF
No. 40) is denied;
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4. Plaintiff’s motion to dismiss (ECF No. 53) is construed as plaintiff’s opposition to

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defendant Stocker’s motion to dismiss;

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5. Defendants’ motion to dismiss (ECF No. 43) is granted with leave to amend as to the

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following claims against defendant Hill: a) defendant Hill allowed plaintiff to live in

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conditions that were unsanitary in violation of the Eighth Amendment; b) defendant

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Hill allowed plaintiff to be housed on an upper bunk in the back in violation of his

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Eighth Amendment right to adequate medical care; and c) defendant Hill allowed

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plaintiff to live in these conditions in retaliation for plaintiff complaining about them;

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6. Plaintiff is granted thirty days to file a second amended complaint; if plaintiff does not

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file a second amended complaint, defendant Wang will be required to respond to

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plaintiff’s allegations in the first amended complaint within the deadlines stated in

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Fed. R. Civ. P. 12(a)(1);

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7. If plaintiff files a second amended complaint, defendants shall not respond to the

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second amended complaint until ordered by the court;
IT IS HEREBY RECOMMENDED that defendants’ motions to dismiss (ECF Nos. 38

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and 43) be granted as to all claims against defendant Stocker and plaintiff’s cover-up claim

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against defendant Hill; defendants’ motion to dismiss be denied as to plaintiff’s claims against

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defendant Wang.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 8, 2014

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Cray350.mtd

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