Porter v. Neotti et al

Filing 133

ORDER Granting in part and Denying in part Defendant's 80 Motion to Dismiss Plaintiff's First Amended Complaint and Issuing Order to Show Cause Why Defendants Should not be Dismissed for Failing to Prosecute. Plaintiff must show cause n o later than thirty (30) days from the date this Order is filed why the claims against Defendants Chavez, John Doe Facility 2 Law Library Assistant, Jane Doe RN Nurse and Serfullah should not be dismissed for want of prosecution pursuant to FED.R.CIV .P. 4(m). If Plaintiff fails to provide the Court with documentation demonstrating proper service on these Defendants within thirty (30) days from the date this Order is filed, the claims against them in this action will be dismissed without prejudice. Signed by Judge Barry Ted Moskowitz on 2/6/2013. (rlu)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 RYAN E. PORTER, CDCR #V-40311 Case No. 13 Plaintiff, ORDER: 14 (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FED.R.CIV .P. 12(b) AND 12(b)(6); AND 15 16 vs. 17 18 GEORGE NEOTTI, et al., 19 20 21 11cv1050 BTM (BLM) Defendants. (2) ISSUING ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE DISMISSED FOR FAILING TO PROSECUTE PURSUANT TO FED.R.CIV .P. 4(m) 22 23 24 Currently before the Court is Defendants Akbari, Allamby, Alvarado, Camarena, Casillas, 25 Chance, Choo, Cobb, Davis, Estrada, Flournoy, Gambel, Garza, Germano, Gonzalez, Hernandez, 26 Jones, Kennedy, Lacurom, Le, Marquez, Neotti, Ochoa, Pauley, Pulido, Rink, Rivera, Rodriquez, 27 Romero, Samson, Sanchez, Scharr, Seeley, Stricklin, Walker, Wall, Williams, and Wilson’s 28 (“Defendants”) Motion to Dismiss Plaintiff’s First Amended Complaint (“FAC”). (ECF No. I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 1 11cv1050 BTM (BLM) 1 80.) Plaintiff has filed an Opposition to Defendants’ Motion to Dismiss (ECF No. 111) to 2 which Defendants have filed a Reply (ECF No. 115.) 3 I. Plaintiff’s Factual Allegations 4 Plaintiff claims arise out of an alleged series of events relating to the contamination of 5 Plaintiff’s food. Plaintiff alleges that, beginning in March 2010, his food was contaminated and 6 he suffered resulting medical complications. Plaintiff names as defendants 43 different members 7 of the Richard J. Donovan Correctional Facility’s (“RJD”) staff and administration, and broadly 8 alleges that these defendants violated his rights under the First, Eighth, and Fourteenth 9 amendments by failing to protect him from the food contamination, providing inadequate 10 medical attention for his resulting medical complications, retaliating and using excessive force 11 against him for attempting to file grievances relating to the food contamination and his resulting 12 medical care, and denying him due process. Plaintiff seeks injunctive and declaratory relief, as 13 well as compensatory and punitive damages. 14 This overview of Plaintiff’s allegations proceeds chronologically, setting forth the events 15 forming the basis of Plaintiff’s claims and the defendants involved in each event. The following 16 facts are taken from Plaintiff’s verified First Amended Complaint (ECF No. 66) (“FAC”), and 17 do not represent findings of the Court. 18 1. March-June, 2010: Discovery of food contamination, initial reports 19 In March 2010, Plaintiff began to find “feces, dirt, razor blades, dead mice, disinfectant, 20 [and] bleach” in the food provided to RJD’s Sensitive Needs Yard (“SNY” or “protective 21 custody”) inmates, including himself. (FAC ¶ 52.) Plaintiff alleges that “general population” 22 inmates, who are responsible for preparing the food provided to the SNY inmates, were 23 responsible for the contamination. (Id. ¶¶ 52-54) 24 Around this time, Plaintiff showed to Defendants Sgt. Stricklin and Correctional Officer 25 (“C/O”) B. Jones a “food tray that had feces and dirt in the food[.]” (Id. ¶ 55) Defendants 26 Stricklin and Jones failed take any action. 27 28 Between April and June 2010, Plaintiff filed four administrative appeals regarding the food contamination. Plaintiff received no relief from these appeals. (Id.) I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 2 11cv1050 BTM (BLM) 1 2. June-September 2010: Onset of chronic stomach condition 2 Beginning in June 2010, Plaintiff began to experience stomach symptoms as a result of 3 the food contamination. (Id. ¶¶ 63, 74-75.) Plaintiff filed a sick call slip, but received no 4 medical treatment. After filing a second sick call slip, he was seen by a nurse and told that he 5 would be “put on a waiting list.” (Id. ¶ 63.) He filed a third sick call slip in July 2010, and was 6 seen by a nurse. (Id. ¶ 64.) 7 In August 2010, Plaintiff experienced “severe diarrhea” and “feverish symptoms,” and 8 filed another sick call slip. (Id. ¶ 68.) Three weeks after filing the slip, he was seen by a nurse, 9 provided Imodium tablets for his diarrhea, tested with an electrocardiogram, and told that he 10 would eventually see a doctor. (Id.) In September 2010, Plaintiff “continued to try to exhaust 11 [his] administrative remedies and seek medical attention. To no avail.” (Id. ¶ 69.) 12 3. October 2010: First collapse 13 At the end of October 2010, Plaintiff collapsed on the floor of his cell, and his cell mate 14 attempted to call for help. (Id. ¶ 70.) Defendant Jones came to Plaintiff’s cell, but ignored the 15 calls for medical attention. At some point thereafter, Sgt. Luna, a non-party to this litigation, 16 arrived and took Plaintiff to see a nurse, whereupon he received a medical evaluation and was 17 put on a list to see a doctor. 18 4. (Id. ¶ 70.) November 2010: Worsening of symptoms and medical treatment 19 In November 2010, Plaintiff began to suffer “severe [medical] complications” including 20 “severe abdominal pain, severe dizz[i]ness, severe bloating and fullness [making it] painful to 21 eat and drink water, . . . bowel movements [that were] green [and] really chalky looking, [and] 22 painful indigestion.” (Id. ¶ 73.) Defendant Registered Nurse (“R/N”) Estrada took Plaintiff to 23 the central infirmary, diagnosed him with the flu, and provided him with IV fluids and 24 medication. 25 Estrada, and stated that he had eaten spaghetti several days prior that had been contaminated with 26 feces, but Defendant Estrada ignored these complaints and asked Plaintiff if he had received a 27 psychological evaluation. 28 /// (Id. ¶ 78.) Plaintiff reported the food contamination problem to Defendant (Id. ¶¶ 74-77.) I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 3 11cv1050 BTM (BLM) 1 At or around this time, Plaintiff also saw Defendant Dr. Seeley, and told Defendant 2 Seeley about his stomach problems and the food contamination. Dr. Seeley ignored the 3 complaint regarding food contamination, and told Plaintiff that his stomach problems would 4 probably pass. (Id. ¶¶ 79-80.) 5 5. December 2010: Ongoing symptoms and medical treatment 6 At some time in December 2010, Plaintiff’s “symptoms became too unbearable,” and he 7 collapsed. (Id. ¶ 81.) Plaintiff’s cell mate called for help, and Defendant Jones refused to 8 respond. Eventually, someone else called for help. Defendant Estrada arrived and made 9 derogatory comments to Plaintiff. (Id. ¶¶ 82-84.) Plaintiff was placed in a wheelchair, and 10 Defendant Jones wheeled him to the back of his housing facility and left him on a bench, “out 11 in the cold,” in only “a pair of boxers, socks, and a white t-shirt.” (Id. ¶ 85.) Eventually, two 12 other inmates had to help carry Plaintiff back to his cell. (Id.) 13 Plaintiff’s “unbearable” symptoms continued the next day, and his cell mate called for 14 help once more. (Id. ¶ 86.) Defendant C/O Chance arrived and initially refused to call for help, 15 but eventually did after arguing with Plaintiff’s cell mate “for 5 or 6 minutes.” (Id. ¶ 87.) 16 Defendant Estrada arrived and reluctantly took him to the central infirmary, where Plaintiff 17 received treatment. (Id. ¶ 88.) 18 Two days later, Plaintiff himself called for help, and he was taken to Chula Vista Sharp 19 Memorial Hospital, where he received a CAT scan. (Id. ¶¶ 89-91.) Plaintiff attempted to report 20 the food contamination issue to the doctor at the hospital, but the transport officers 21 accompanying him interrupted, and told the doctor that Plaintiff was “psychologically disabled.” 22 (Id.) 23 gastrointestinal specialist. (Id. ¶ 92.) Plaintiff was sent back to RJD, where his symptoms 24 continued. (Id. ¶ 91.) The hospital staff recommended to prison officials that they take Plaintiff to a 25 6. December 2010: Letters to Defendants Neotti, Hernandez, and Chu 26 Plaintiff wrote letters to Defendants Neotti (former warden), Hernandez, and Dr. Ivy Chu, 27 forwarding copies of his grievances regarding food contamination. These letters received no 28 reply. (Id. ¶ 93.) On December 7, 2010, Plaintiff sent a follow-up letter to Defendant Neotti. I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 4 11cv1050 BTM (BLM) 1 (Id. ¶ 94, Ex. 2.) 2 7. 3 On or about January 6, 2011, Plaintiff was called to the medical clinic at his housing 4 facility. Defendant C/O Alvarado initially prevented Plaintiff from entering the clinic and 5 verbally harassed him, but subsequently let him in. (Id. ¶¶ 95-96.) January 6, 2011: Clinic visit and “pruno” incident 6 During Plaintiff’s visit, the attending nurse informed Plaintiff that Defendant Jones had 7 told her that Plaintiff was making “jailhouse wine” (or “pruno”), and that the pruno was causing 8 his symptoms. (Id. ¶ 97.) 9 Also during that visit, Defendant Jones found a batch of pruno in another cell and falsely 10 wrote Plaintiff up for it. Plaintiff was found “not guilty” at a subsequent disciplinary hearing. 11 (Id. ¶¶ 98-100, Ex. 3.) 12 8. January 28, 2011: Visit with Dr. Seeley 13 Defendant Seeley called Plaintiff in for a visit on January 28, 2011, at which Plaintiff 14 once again complained of his ongoing symptoms and reported ongoing food contamination. Dr. 15 Seeley was dismissive of these complaints and told Plaintiff to leave. (Id. ¶¶ 101-104.) 16 At that point, Defendant Alvarado grabbed him by the throat. Defendant Alvarado 17 subsequently falsely accused Plaintiff of pushing him, and Plaintiff was placed in administrative 18 segregation. (Id. ¶¶ 104-105.) 19 9. February 16, 2011: Disciplinary hearing 20 On February 16, 2011, Plaintiff attended a hearing regarding the incident with Defendant 21 Alvarado at the January 28, 2011 doctor’s visit. Defendant Lieutenant E. Garza prevented 22 Plaintiff from calling his witnesses at that hearing. (Id. ¶¶ 106-107.) 23 10. 24 Plaintiff filed a grievance against unnamed medical staff on February 2, 2011, for failing 25 February 2011: Additional Grievances to respond to an emergency call and failing to report the food contamination. (Id. ¶ 115.) 26 On February 23, 2011, Plaintiff filed a grievance reporting “a cell search that was 27 conducted with the specific intent to seek and destroy [Plaintiff’s] documentation and legal work 28 to prevent Plaintiff from filing grievances[.]” (Id. ¶ 113.) Plaintiff does not name any I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 5 11cv1050 BTM (BLM) 1 2 3 defendants in connection with this incident. On February 28, 2011, Plaintiff filed another grievance against the medical staff for failing to respond to an emergency call. (Id. ¶ 114.) 4 11. 5 On March 3, 2011, Defendant Alvarado threw away Plaintiff’s mail, and then approached 6 Plaintiff’s cell and stated: “You[’re] a little bitch, I ain’t giving you shit, fuck you and your 7 mail!” (Id. ¶ 116.) Plaintiff alleges that he filed a grievance regarding this incident, but that 8 Defendant Cobb “refused to process it.” (Id.) 9 12. March 3, 2011: Denial of mail March 10, 2011: Denial of food 10 On March 10, 2011, Defendant C/O Marquez denied Plaintiff and his cell mate their 11 breakfast and lunch, and stated: “Quit filing staff complaints against my boys and causing us 12 problems.” (Id. ¶ 118.) 13 13. March 20, 2011: Unprovoked beating 14 On March 20, 2011, Defendants Sgt. Scharr, Sgt. S. Wall, C/O J. Rodriguez, C/O C. 15 Wilson, C/O H. Le, C/O M. Casillas, C/O R. Davis, C/O H. Romero, and C/O C. Martinez 16 participated in entering Plaintiff’s cell and beating and kicking Plaintiff in response to Plaintiff’s 17 complaint that he was experiencing “severe abdominal pain” and that he was not getting the 18 medical attention he had requested. (Id. ¶¶ 121-128.) These defendants then falsely wrote 19 Plaintiff up for blocking the food port. (Id.) Defendant R/N Chavez refused to treat Plaintiff 20 for his resulting injuries. (Id. ¶ 130.) On April 18, 2011, Plaintiff was found “not guilty” at a 21 disciplinary hearing regarding this incident. (Id. ¶ 141.) 22 14. 23 On April 1, 2011, Defendant Dr. Ding refused to renew Plaintiff’s pain medication in 24 April 1, 2011: Denial of medication retaliation for Plaintiff’s complaints. (Id. ¶ 135.) 25 15. April 5, 2011: Delay of Plaintiff’s medical appeal 26 At some point during the course of these events, Plaintiff filed an “emergency medical 27 appeal.” On April 5, 2011, Defendant Rivera, RJD’s health care appeals coordinator, delayed 28 ruling on Plaintiff’s grievance and informed him that it would not be processed until June 2, I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 6 11cv1050 BTM (BLM) 1 2011. (Id. ¶¶ 136-137.) 2 16. April 11, 2011: Plaintiff reports food contamination to Defendant Kennedy 3 On April 11, 2011, Plaintiff and other inmates found feces in their oatmeal and notified 4 Defendant Sgt. Kennedy, who told them that “he would log it in the Building #6 log book[.]” 5 (Id. ¶ 140.) 6 17. 7 Plaintiff alleges a number of incidents during this period in which he was denied an 8 9 10 May-September 2011: Ongoing denial of medical treatment adequate level of medical care. On May 7, 2011, Defendant R/N Pulido denied Plaintiff medical treatment and refused to send him to the hospital. (Id. ¶ 144.) 11 On May 8, 2011, Defendant R/N Lacurom refused to send Plaintiff to the hospital. On 12 that same day, Defendant C/O Casillas refused to allow Plaintiff to use the restroom to produce 13 a stool sample requested by Defendant Lacurom. (Id. ¶ 146.) 14 On May 9, 2011, Plaintiff complained to Defendant R/N Jane Doe about the food 15 contamination and his symptoms, and the Doe defendant refused to do anything. (Id. ¶ 147.) 16 On May 12, 2011, Plaintiff complained to Defendant R/N Sanchez about the food 17 contamination and his symptoms, and Defendant Sanchez refused to send him to a hospital. (Id. 18 ¶ 148.) 19 On May 13, 2011, Plaintiff had an appointment with Defendant Nurse Practitioner 20 Serfullah, at which he “complained about [his] symptoms and how [he] was poisoned by the 21 general population inmates.” (Id. ¶ 149.) Defendant Serfullah refused to acknowledge 22 Plaintiff’s complaints. (Id.) 23 24 On June 8, 2011, Defendant experienced heart and abdominal pain, and Defendant Pualido refused Plaintiff treatment, instead telling him to fill out a sick call slip. (Id. ¶ 149.) 25 On June 27, 2011, Plaintiff was seen by Defendant Physician’s Assistant Akbari. Plaintiff 26 complained about the food contamination, and Defendant Akbari told Plaintiff that he would 27 look into it. (Id. ¶ 156.) On July 11, 2011, Plaintiff was called back by Defendant Akbari and 28 Defendant Dr. Martinez, who told Plaintiff that “it’s all in your head, there’s nothing wrong with I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 7 11cv1050 BTM (BLM) 1 you.” (Id. ¶ 157.) On September 4, 2011, Defendant Pulido told Plaintiff that he would call Defendant Dr. 2 3 Walker, and would be seen by a doctor “in a week or so.” (Id. ¶ 158.) 4 On September 30, 2011, Plaintiff experienced heart and abdominal pain and was taken 5 to the central infirmary. Upon his arrival, he encountered Defendant R/N Gambel, who became 6 hostile and began interfering with the nurse who was triaging Plaintiff. Defendant Gambel told 7 Plaintiff: “[J]ust continue suing me and see if I give you medical treatment.” Plaintiff was then 8 ordered to leave the infirmary. (Id. ¶ 163-164.) 9 II. Defendants’ Motion to Dismiss 10 A. Defendants’ Arguments 11 Defendants seek dismissal of Plaintiff’s First Amended Complaint on the grounds that: 12 (1) Plaintiff’s First Amended Complaint violates FED.R.CIV.P. 18(a) and 20(a); (2) Plaintiff has 13 failed to state a claim as to several Defendants and: (3) several of Plaintiff’s claims require 14 dismissal for failing to exhaust his administrative remedies. 15 B. 16 Rule 18(a) states that a party “asserting a claim . . . may join, as independent or alternative 17 claims, as many claims as it has against an opposing party.” Fed. R. Civ. P. 18(a). Rule 20(a)(2) 18 states that different defendants may be joined in one action if: 19 20 Fed.R.Civ.P. 18(a) and 20(a) (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and 21 22 (B) any question of law or fact common to all defendants will arise in the action. 23 Fed. R. Civ. P. 20(a)(2). Here, it is clear that Plaintiff’s claims “arise out of a systematic pattern 24 of events.” Coughlin v. Rogers, 130 F.3d 1348, 1350 (1997). All of Plaintiff’s claims arise out 25 of his initial claims of food contamination and the various medical ailments which he claims he 26 suffers from as a result of the alleged food contamination. In addition, there are common 27 questions of fact and law as Plaintiff’s claims arise under the First, Eighth and Fourteenth 28 Amendments. Therefore, the Court DENIES Defendants’ Motion to Dismiss Plaintiff’s claims I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 8 11cv1050 BTM (BLM) 1 or sever any of the claims pursuant to FED.R.CIV.P. 18(a) and 20(a). 2 C. FED.R.CIV .P. 12(b)(6) Standard of Review 3 A Rule 12(b)(6) dismissal may be based on either a “‘lack of a cognizable legal theory’ 4 or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” Johnson v. 5 Riverside Healthcare System, LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Balistreri 6 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In other words, the plaintiff’s 7 complaint must provide a “short and plain statement of the claim showing that [he] is entitled 8 to relief.” Id. (citing FED.R.CIV.P. 8(a)(2)). “Specific facts are not necessary; the statement need 9 only give the defendant[s] fair notice of what ... the claim is and the grounds upon which it 10 rests.” Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (internal quotation marks 11 omitted). 12 A motion to dismiss should be granted if plaintiff fails to proffer “enough facts to state 13 a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 14 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the 15 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) . 17 In addition, factual allegations asserted by pro se petitioners1, “however inartfully 18 pleaded,” are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines 19 v. Kerner, 404 U.S. 519-20 (1972). Because “Iqbal incorporated the Twombly pleading standard 20 and Twombly did not alter courts’ treatment of pro se filings, [courts] continue to construe pro 21 se filings liberally when evaluating them under Iqbal.” Hebbe v. Pliler, 627 F.3d 338, 342 & 22 n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). 23 D. Application to Plaintiff’s First Amended Complaint 1. 24 Personal Causation 25 Defendants Williams, Flourney, Allamby, Gonzalez, Gernoma, Camarena, Ochoa, Rink, 26 Kennedy, Sampson and Pauly move to dismiss themselves from this action on the grounds that 27 28 1 While Plaintiff is now represented by counsel (ECF No. 86), at the time he filed this action and at the time he filed his First Amended Complaint, he was acting in pro se. I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 9 11cv1050 BTM (BLM) 1 Plaintiff has not “made any factual allegations” against them. (See Defs.’ Memo of Ps & As in 2 Supp. of MTD at 10.) As to Defendant Kennedy, Defendants’ Motion is denied as Plaintiff does 3 allege some factual allegations regarding Defendant Kennedy. (See FAC ¶ 140.) In their Reply, 4 Defendants for the first time acknowledge that Plaintiff did allege some factual allegations as 5 to Defendant Kennedy and argue that Plaintiff has failed to state a claim against Defendant 6 Kennedy. Defendants cannot raise a new argument for the first time in a Reply, and thus, 7 Defendant Kennedy’s Motion to Dismiss the claims against him for failing to state a claim is 8 DENIED. 9 A person deprives another “of a constitutional right, within the meaning of section 1983, 10 if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an 11 act which he is legally required to do that causes the deprivation of which [the plaintiff 12 complains].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). “Causation is, of course, a 13 required element of a § 1983 claim.” Estate of Brooks v. United States, 197 F.3d 1245, 1248 14 (9th Cir. 1999). “The inquiry into causation must be individualized and focus on the duties and 15 responsibilities of each individual defendant whose acts or omissions are alleged to have caused 16 a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citing Rizzo 17 v. Goode, 423 U.S. 362, 370-71 (1976)); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986). 18 Here, the Court finds that Plaintiff has failed to state any facts that would hold Defendants 19 Williams, Flourney, Allamby, Gonzalez, Gernoma, Camarena, Ochoa, Rink, Sampson and Pauly 20 liable for the alleged deprivation of his constitutional rights. 21 Therefore, Defendants Williams, Flourney, Allamby, Gonzalez, Gernoma, Camarena, 22 Ochoa, Rink, Sampson and Pauly’s Motion to Dismiss the claims against them found in 23 Plaintiff’s First Amended Complaint for failing to state a claim pursuant to FED.R.CIV.P. 24 12(b)(6) is GRANTED. 25 2. Defendant Walker 26 Defendant Walker moves to dismiss the claims against him on the grounds that, while 27 there are a few factual allegations pertaining to Defendant Walker, none of the allegations rise 28 to the level of a constitutional violation. (See Defs. Memo of Ps & As in Supp. of MTD at 10- I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 10 11cv1050 BTM (BLM) 1 11.) In his First Amended Complaint, the only allegations against Defendant Walker are 2 Plaintiff’s claims that he was examined by a nurse who told Plaintiff that the nurse would contact 3 Defendant Walker. (See FAC at 19.) 4 could reasonably find that Defendant Walker was in any way involved in the alleged violation 5 of Plaintiff’s constitutional rights. Accordingly, Defendant Walker’s Motion to Dismiss the 6 claims against him in Plaintiff’s First Amended Complaint for failing to state a claim is 7 GRANTED. 3. 8 There are no factual allegations from which the Court Voluntary dismissal of Defendants 9 Plaintiff has consented to the dismissal of some of the Defendants listed above, as well 10 as other named Defendants. Specifically, Plaintiff has agreed to the dismissal of Defendants 11 Allamby, Rink, Camarena, Wall and “Library II Assistant” without prejudice. (See Pl.’s Opp’n 12 to MTD at 42.) In addition, Plaintiff has agreed to the dismissal of Defendants Casillas, Chance, 13 Ding and Sampson with prejudice. (Id.) Thus, the Court will order the dismissal of these 14 Defendants and will enter judgment for Defendants Casillas, Chance, Ding and Sampson 15 pursuant to FED.R.CIV.P. 54(b). 4. 16 Claims against Defendant Rivera 17 Defendant Rivera seeks to dismiss Plaintiff’s claims against him on the grounds that he 18 cannot hold Defendant Rivera liable for the way in which he handled Plaintiff’s grievances. (See 19 Defs.’ Memo of Ps & As in Supp. of MTD 21-22.) The only allegations pertaining to Defendant 20 Rivera are Plaintiff’s allegations that Defendant Rivera refused to process Plaintiff’s health care 21 grievance as an emergency which Plaintiff claims was required by prison regulations. (See FAC 22 ¶¶ 136-37.) 23 The Fourteenth Amendment provides that: “[n]o state shall ... deprive any person of life, 24 liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. “The 25 requirements of procedural due process apply only to the deprivation of interests encompassed 26 by the Fourteenth Amendment’s protection of liberty and property.” Board of Regents v. Roth, 27 408 U.S. 564, 569 (1972). State statutes and prison regulations may grant prisoners liberty or 28 property interests sufficient to invoke due process protection. Meachum v. Fano, 427 U.S. 215, I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 11 11cv1050 BTM (BLM) 1 223-27 (1976). To state a procedural due process claim, Plaintiff must allege: “(1) a liberty or 2 property interest protected by the Constitution; (2) a deprivation of the interest by the 3 government; [and] (3) lack of process.” Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000). 4 However, the Ninth Circuit has held that prisoners have no protected property interest in 5 an inmate grievance procedure arising directly from the Due Process Clause. See Ramirez v. 6 Galaza, 334 F.3d 850, 869 (9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement 7 to a specific prison grievance procedure”) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 8 1988) (finding that the due process clause of the Fourteenth Amendment creates “no legitimate 9 claim of entitlement to a [prison] grievance procedure”)); accord Adams v. Rice, 40 F.3d 72, 75 10 (4th Cir. 1994) (1995); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). 11 In addition, Plaintiff has failed to plead facts sufficient to show that a prison official 12 deprived him of a protected liberty interest by allegedly failing to respond to his prison 13 grievances in a satisfactory manner. While a liberty interest can arise from state law or prison 14 regulations, Meachum, 427 U.S. at 223-27, due process protections are implicated only if 15 Plaintiff alleges facts to show that Defendants: (1) restrained his freedom in a manner not 16 expected from his sentence, and (2) “impose[d] atypical and significant hardship on [him] in 17 relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995); 18 Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997). Thus, to the extent Plaintiff challenges 19 the procedural adequacy of inmate grievance procedures, his First Amended Complaint fails to 20 state a claim. Defendant Rivera’s Motion to Dismiss the claims against him pursuant to 21 FED.R.CIV.P. 12(b)(6) is GRANTED. 22 5. Verbal Harassment 23 Defendants seek dismissal of claims of verbal harassment and argue that Plaintiff “alleges 24 that numerous defendants swore at him, and were insensitive.” (Defs. Memo of Ps & As in 25 Supp. of MTD 23.) Standing alone, the Court agrees that a claim of verbal harassment or verbal 26 abuse by prison officials generally does not constitute a violation of the Eighth Amendment. See 27 Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (harassment does not constitute an Eighth 28 Amendment violation); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (harassment I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 12 11cv1050 BTM (BLM) 1 in the form of vulgar language directed at an inmate is not cognizable under § 1983); McDowell 2 v. Jones, 990 F.2d 433, 434 (8th Cir. 1993) (verbal threats and name calling are not actionable 3 under § 1983). 4 5 6 Thus, the Court GRANTS Defendants’ Motion to Dismiss Plaintiff’s Eighth Amendment verbal harassment claims pursuant to FED.R.CIV.P. 12(b)(6). 6. Eighth Amendment claims against Defendants Lacurom and Sanchez 7 Defendants Lacurom and Sanchez move to dismiss the Eighth Amendment deliberate 8 indifference to serious medical need claims against them. (See Defs.’ Memo of Ps & As at 25- 9 26.) Plaintiff alleges that he sought treatment from Defendant Lacurom and Sanchez on May 10 8, 2011 and May 12, 2011. (See FAC ¶¶ 146-148.) In each instance, Plaintiff alleges that he 11 requested to be transferred to a hospital but both Defendants refused to transfer Plaintiff. (Id.) 12 Where an inmate’s claim is one of inadequate medical care, the inmate must allege “acts 13 or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” 14 Estelle v. Gamble, 429 U.S. 97, 106 (1976). Such a claim has two elements: “the seriousness 15 of the prisoner’s medical need and the nature of the defendant’s response to that need.” 16 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX 17 Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). A medical need is serious “if the 18 failure to treat the prisoner’s condition could result in further significant injury or the 19 ‘unnecessary and wanton infliction of pain.’” McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 20 U.S. at 104). Indications of a serious medical need include “the presence of a medical condition 21 that significantly affects an individual’s daily activities.” Id. at 1059-60. By establishing the 22 existence of a serious medical need, an inmate satisfies the objective requirement for proving 23 an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). 24 In general, deliberate indifference may be shown when prison officials deny, delay, or 25 intentionally interfere with a prescribed course of medical treatment, or it may be shown by the 26 way in which prison medical officials provide necessary care. Hutchinson v. United States, 838 27 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said that a inmate’s civil rights have been 28 abridged with regard to medical care, however, “the indifference to his medical needs must be I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 13 11cv1050 BTM (BLM) 1 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 2 cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing 3 Estelle, 429 U.S. at 105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). 4 While Plaintiff may be able to allege additional facts to support an Eighth Amendment 5 claim against these two Defendants, he currently only pleads facts that demonstrate a difference 6 of opinion. A mere difference of opinion between an inmate and prison medical personnel 7 regarding appropriate medical diagnosis and treatment are not enough to establish a deliberate 8 indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Here, Plaintiff believes 9 that he should have been transferred to a hospital but he fails to allege any other facts to show 10 that Defendants Lacurom or Sanchez were deliberately indifferent to his serious medical need 11 simply because they did not follow his requests. He does not allege that they refused to treat him 12 in another manner, only that they would not recommend him for a transfer to a hospital. Thus, 13 the Court GRANTS Defendants Lacurom and Sanchez’s Motion to Dismiss for failing to state 14 an Eighth Amendment claims pursuant to FED.R.CIV.P. 12(b)(6) without prejudice. 7. 15 Fourteenth Amendment claims against Defendant Garza 16 Plaintiff alleges that Defendant Garza violated his due process rights during his 17 disciplinary hearing by refusing to allow his witnesses to testify on his behalf. (See FAC ¶¶ 106- 18 107.) 19 As previously stated, the Due Process Clause prohibits states from “depriving any person 20 of life, liberty, or property, without the due process of law.” U.S. CONST. AMEND. XIV. The 21 procedural guarantees of due process apply only when a constitutionally-protected liberty or 22 property interest is at stake. See Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974). In order to 23 invoke the protection of the Due Process Clause, Plaintiff must first establish the existence of 24 a liberty interest. Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384 (2005); Sandin, 515 U.S. 25 at 472. In Sandin, the Supreme Court “refocused the test for determining the existence of a 26 liberty interest away from the wording of prison regulations and toward an examination of the 27 hardship caused by the prison’s challenged action relative to the ‘basic conditions’ of life as a 28 prisoner.” Mitchell v. Dupnik, 75 F.3d 517, 522 (9th Cir. 1996) (citing Sandin, 515 U.S. at 484); I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 14 11cv1050 BTM (BLM) 1 McQuillion v. Duncan, 306 F.3d 895, 902-03 (9th Cir. 2002) (noting that Sandin abandons the 2 mandatory/permissive language analysis courts traditionally looked to when determining whether 3 a state prison regulation created a liberty interest which required due process protection). 4 Thus, “[a]fter Sandin, it is clear that the touchstone of the inquiry into the existence of 5 a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not 6 the language of regulations regarding those conditions but the nature of those conditions 7 themselves ‘in relation to the ordinary incidents of prison life.’” Wilkinson, 125 S.Ct. at 2394. 8 The Sandin test requires a case-by-case examination of both the conditions of the prisoner’s 9 confinement and the duration of the deprivation at issue. Sandin, 515 U.S. at 486. 10 The Court must determine whether Plaintiff has established a protected liberty interest, 11 and thus, under Sandin, the Court must determine whether the disciplinary hearing purportedly 12 resulting in disciplinary segregation “imposes atypical and significant hardship on the inmate 13 in relation to the ordinary incidents of prison life.” Id. at 484. In Sandin, the Court found there 14 were three factors to consider when determining whether disciplinary segregation imposes 15 atypical and significant hardship: “(1) disciplinary segregation was essentially the same as 16 discretionary forms of segregation; (2) a comparison between the plaintiff’s confinement and 17 conditions in the general population showed that the plaintiff suffered no “major disruption in 18 his environment”; and the length of the plaintiff’s sentence was not affected.” Jackson v. Carey, 19 353 F.3d 750, 755 (quoting Sandin, 515 U.S. at 486-87). 20 Here, Plaintiff alleges no facts that would satisfy any of the factors found in Sandin. 21 While Plaintiff alleges there were violations in the due process of the hearing itself, he fails to 22 allege facts sufficient to show that the outcome of the hearing resulted in an “atypical and 23 significant hardship” on Plaintiff. Accordingly, Defendant Garza’s Motion to Dismiss Plaintiff’s 24 Fourteenth Amendment claims against him is GRANTED pursuant to FED.R.CIV.P. 12(b)(6). 25 E. Standard of Review per FED.R.CIV .P. 12(b) and 42 U.S.C. § 1997e(a) 26 Defendants move to dismiss a number of claims in Plaintiff’s First Amended Complaint 27 on the grounds that some claims should be dismissed for failing to exhaust available 28 administrative remedies pursuant to FED.R.CIV.P. 12(b) and 42 U.S.C. § 1997e(a). I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 15 11cv1050 BTM (BLM) 1 42 U.S.C. § 1997e(a) provides that “[n]o action shall be brought with respect to prison 2 conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, 3 prison, or other correctional facility until such administrative remedies as are available are 4 exhausted.” 42 U.S.C. § 1997e(a). Compliance with the exhaustion requirement is mandatory. 5 Porter v. Nussle, 534 U.S. 516, 524 (2002). Section 1997e(a) “applies to all inmate suits about 6 prison life, whether they involve general circumstances or particular episodes, and whether they 7 allege excessive force or some other wrong.” Id. at 532; see also Booth v. Churner, 532 U.S. 8 731, 739-40 & n.5 (2001) (requiring exhaustion regardless of whether the specific remedy sought 9 by the prisoner is “available” within the administrative grievance procedure). However, non- 10 exhaustion under § 1997e(a) is an affirmative defense, and Defendants carry the burden of 11 raising and proving its absence. Jones v. Bock, 549 U.S. 199, 216 (2007); Wyatt v. Terhune, 315 12 F.3d 1108, 1119 (9th Cir. 2003) (same). 13 Following the December 28, 2011 hearing on the exhaustion issue, the Court found that 14 Plaintiff had satisfied the exhaustion requirement with respect to his food contamination claims. 15 (ECF No. 85 at 7-8.) In addition, at that hearing, Defendant Rivera testified, and the Court 16 found that Plaintiff had exhausted his claim that he received inadequate medical attention for 17 health problems resulting from the allegedly contaminated food. (Id. at 3, 8.) 18 Defendants do not dispute these conclusions in their present motion. Defendants indicate 19 that their argument in support of finding a failure to exhaust administrative remedies “does not 20 address food contamination” and they “concede the Porter has exhausted his claim that he was 21 denied medical care resulting from the consumption of contaminated food.” (Defs.’ Reply in 22 Supp. of MTD at 7, 8.) However, Defendants argue that “the scope of that exhaustion [relating 23 to Plaintiff’s medical treatment claims] has not been defined, and many of [Plaintiff’s claims] 24 do not pertain to inadequate medical care from consumption of contaminated food, but to 25 medical care generally.” (Id. at 9.) 26 Defendants list seventeen (17) instances in their moving papers in which they claim 27 Plaintiff failed to exhaust his administrative remedies. (See Defs. Memo of Ps & As in Supp. 28 of MTD at 14-20.) However, despite conceding that with regard to some of these claims the I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 16 11cv1050 BTM (BLM) 1 Court has since found exhaustion on the part of Plaintiff, there are now twenty-four (24) 2 instances in their Reply in which they argue Plaintiff failed to exhaust his administrative 3 remedies. (See Defs. Reply in Supp. of MTD at 8-10.) Because it appears that Defendants have 4 added additional arguments regarding exhaustion in their Reply, the Court will not consider 5 those arguments as they were not properly raised in the initial Motion. 6 It is extremely difficult for the Court to discern which claims the Defendants claim are 7 exhausted and which ones they argue are not exhausted. It appears that the Defendants 8 distinguish the Court’s previous finding of exhaustion by arguing that the claims related to 9 inadequate medical care are exhausted but the claims of deliberate indifferent to serious medical 10 needs by individual defendants have not been exhausted. (See Defs.’ Memo of Ps & As in Supp. 11 of MTD at 14-21.) Yet, there is insufficient support in their moving papers to explain how they 12 came to this categorization of Plaintiff’s medical claims. In support of this argument, 13 Defendants have supplied the Declaration of L. Zamora, Chief of the Office of Third Level 14 Appeals Healthcare. (See L. Zamora Declaration, ECF No. 80-3.) However, while this 15 declaration supplies the Defendants’ response to Plaintiff’s grievances, they fail to supply the 16 actual grievances filed by Plaintiff. Thus, the Court simply cannot determine the scope of the 17 allegations presented by Plaintiff in his initial grievances that were filed and whether they relate 18 to the claims in Plaintiff’s First Amended Complaint. 19 Defendants also argue as to some of the claims that Plaintiff has not “alleged filing an 20 administrative appeal.” (See Defs. Memo of Ps & As in Supp. of MTD at 14.) However, the 21 “failure to exhaust [under § 1997e(a)] is an affirmative defense ...[and] inmates are not required 22 to specially plead or demonstrate exhaustion in their complaints.” Jones, 549 U.S. at 216. 23 Instead, it is Defendants who must “demonstrate” Plaintiff’s failure to exhaust, by providing 24 documentary evidence, including affidavits, which serve as proof of Plaintiff’s administrative 25 grievance records and do more than simply “describe the inmate appeals process.” Id.; Wyatt, 26 315 F.3d at 1119-20 (9th Cir. 2003) (noting defendant prison officials’ “superior access to 27 prison administrative records in comparison to prisoners, especially, as is often the case, when 28 prisoners have moved from one facility to another.”). Here, the Court finds that Defendants I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 17 11cv1050 BTM (BLM) 1 have not carried their burden with regard to any of Plaintiff’s Eighth Amendment medical issues 2 pursuant to Wyatt or Jones. 3 In addition, some of the arguments raised by Defendants relate to claims or Defendants 4 who have either been voluntarily dismissed or the Court has dismissed claims against them for 5 the reasons stated above. See 42 U.S.C. § 1997e(c)(2) (“In the event that a claim is, on its face, 6 frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary 7 relief from a defendant who is immune from such relief, the court may dismiss the underlying 8 claim without first requiring the exhaustion of administrative remedies.”) Thus, the Court need 9 not consider whether Plaintiff adequately exhausted his administrative remedies as to Defendants 10 Garza, Allamby, Rink, Camarena, Wall, Casillas, Chance, Ding, Sampson, Rivera, Walker as 11 those Defendants have been dismissed from this action. 12 Finally, Defendants claim that Plaintiff did not exhaust claims as to a number of other 13 issues including claims of retaliation and interference with his mail. (Defs. Memo of Ps & As 14 in Supp. of MTD at 16-20.) Defendants contend that Plaintiff has attached an “unprocessed 15 administrative appeal marked as Exhibit 12 to his First Amended Complaint” but the “appeal 16 was not received by the appeals office, and there is no reason to believe that Porter actually 17 submitted it.” (Id. at 17.) There are actually several administrative grievances attached as 18 Exhibit 12 to Plaintiff’s First Amended Complaint and Defendants are correct that there do not 19 appear to be any markings to indicate whether Defendants received these grievances. However, 20 what Defendants fail to note is the “Inmate Appeal Assignment Notice” attached to Plaintiff’s 21 First Amended Complaint (ECF No. 66-2 at 55) in which Defendant Cobb acknowledges receipt 22 of Plaintiff’s appeal and notes the appeal as “staff complaints.” In the declaration submitted by 23 Defendant Cobb, there is no mention of this grievance regarding “staff complaints” that was 24 given Log No. RJD-2-11-00234. It is listed in the tracking log attached to Defendant Cobb’s 25 Declaration (ECF No. 80-4 at 8) and there is an entry showing that the disposition at the Second 26 Level of Review was “granted in part.” It is not clear to the Court whether this particular 27 grievance regarding “staff complaints” are related to issues raised by Plaintiff in these grievances 28 attached to his First Amended Complaint and thus, the Court finds that the Defendants have I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 18 11cv1050 BTM (BLM) 1 failed to meet their burden of providing a full record with regard to exhaustion. Defendants’ 2 Motion to Dismiss Plaintiff’s First Amended Complaint for failing to exhaust his administrative 3 remedies pursuant to FED.R.CIV.P. 12(b) is DENIED. 4 Defendants’ Motion without prejudice to reassert it in a later motion. Defendants are cautioned 5 that they must provide a full and complete record with regard to this issue. 6 III. However, the Court will deny Remaining Defendants 7 A review of the Court’s docket indicates that Plaintiff has failed to properly serve 8 Defendants Chavez, John Doe Facility 2 Law Library Assistant, Jane Doe RN Nurse and 9 Serfullah. See Walker v. Sumner, 14 F.3d 1415, 1421-22 (9th Cir. 1994) (where a pro se 10 plaintiff fails to provide the Marshal with sufficient information to effect service, the court’s sua 11 sponte dismissal of those unserved defendants is appropriate under FED.R.CIV.P. 4(m)). 12 Accordingly, this Court ORDERS Plaintiff to show cause no later than thirty days (30) 13 after this Order is filed, why the claims against these Defendants should not be dismissed for 14 want of prosecution pursuant to FED.R.CIV.P. 4(m). If Plaintiff wishes to proceed with his 15 claims against these Defendants he must provide the Court with proof of proper service within 16 thirty (30) days from the date this Order is filed. Otherwise, Defendants Chavez, John Doe 17 Facility 2 Law Library Assistant, Jane Doe RN Nurse and Serfullah will be dismissed from this 18 action without prejudice. 19 III. Conclusion and Order 20 Based on the foregoing, the Court hereby: 21 (1) GRANTS Plaintiff’s request to voluntarily dismiss Defendants Allamby, Rink, 22 Camarena, Wall and Facility 2 Law Library Assistant from this action without prejudice. The 23 Clerk of Court is directed to terminate these Defendants from the docket. (2) 24 GRANTS Plaintiff’s request to voluntarily dismiss Defendants Casillas, Chance, 25 Ding and Sampson from this action with prejudice. Because there is no just reason for delay, 26 the Court directs the Clerk of Court to enter judgment on behalf of these Defendants pursuant 27 to FED.R.CIV.P. 54(b) and terminate these Defendants from the docket. 28 /// I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 19 11cv1050 BTM (BLM) 1 2 3 4 5 (3) DENIES Defendants’ Motion to Sever or Dismiss Plaintiff’s First Amended Complaint pursuant to FED.R.CIV.P. 18(a) or 20(a); (4) DENIES Defendant Kennedy’s Motion to Dismiss pursuant to FED.R.CIV.P. 12(b)(6); (5) GRANTS Defendants Williams, Flourney, Allamby, Gonzalez, Gernoma, 6 Camarena, Ochoa, Rink, Sampson, Pauly, Walker, Rivera, Lacurom, Sanchez and Garza’s 7 Motion to Dismiss pursuant to FED.R.CIV.P. 12(b)(6); 8 9 10 11 12 (6) GRANTS Defendants’ Motion to Dismiss Plaintiff’s verbal harassment claims pursuant to FED.R.CIV.P. 12(b)(6); (7) DENIES Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint for failing to exhaust his administrative remedies pursuant to FED.R.CIV.P. 12(b) without prejudice. (8) Plaintiff has thirty (30) days from the entry of this Order to file a Second Amended 13 Complaint to correct the deficiencies of pleading identified in the Court’s Order. If Plaintiff 14 chooses to file a Second Amended Complaint it must be complete in itself without reference to 15 his previous Complaints. Defendants not named and all claims not re-alleged in the Second 16 Amended Complaint will be deemed to have been waived. 17 Plaintiff can also choose not to file a Second Amended Complaint and instead this action 18 can go forward on the remaining claims. If Plaintiff chooses this option, he has thirty (30) days 19 to file a Statement indicating his desire to move forward with the remaining causes of action 20 found in his First Amended Complaint and the Court will issue an Order directing Defendants 21 Neotti, Hernandez, Seeley, Martinez, Choo, Scharr, Gambel, Estrada, Pulido, Cobbs, Strickland, 22 Jones, Alvarado, Rodriguez, Le, Davis, Martinez, Wilson, Romero, Marquez, Kennedy and 23 Akbari to file an Answer to Plaintiff’s First Amended Complaint. 24 IT IS FURTHER ORDERED that: 25 (9) Plaintiff must show cause no later than thirty (30) days from the date this Order 26 is filed why the claims against Defendants Chavez, John Doe Facility 2 Law Library Assistant, 27 Jane Doe RN Nurse and Serfullah should not be dismissed for want of prosecution pursuant to 28 FED.R.CIV.P. 4(m). If Plaintiff fails to provide the Court with documentation demonstrating I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 20 11cv1050 BTM (BLM) 1 proper service on these Defendants within thirty (30) days from the date this Order is filed, the 2 claims against them in this action will be dismissed without prejudice. 3 IT IS SO ORDERED. 4 5 DATED: February 6, 2013 6 BARRY TED MOSKOWITZ, Chief Judge United States District Court 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I:\Chambers Moskowitz\FUNK\Pro se\11cv1050-Grt & Dny MTD & OSC #2.wpd 21 11cv1050 BTM (BLM)

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