Kocontes v. Guimbaolibot et al

Filing 5

ORDER Granting Motion to Proceed in Forma Pauperis (ECF 2 ) and Dismissing Complaint in Part. The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the filing fee owed in this case by collecti ng monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 USC 1915(b)(2). Copy of this order served on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 942883, Sacramento, California 94283-0001 via U.S. Mail Service. Signed by District Judge Andrew G. Schopler on 01/03/2025. (All non-registered users served via U.S. Mail Service)(mef)

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NOT FOR PUBLICATION

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
Lonnie KOCONTES,

Case No.: 24-cv-1513-AGS-AHG

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Plaintiff,

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v.

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Razel GUIMBAOLIBOT, et al.,

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Defendants.

ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS
(ECF 2) AND DISMISSING
COMPLAINT IN PART

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Inmate Lonnie Kocontes, proceeding without an attorney, moves to proceed in forma

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pauperis, that is, without prepaying the court’s filing fees. In this civil-rights suit under

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42 U.S.C. § 1983, California Government Code section 845.6, and California state

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common law, he alleges that the catheter-related care he received in prison harmed him

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and violated his constitutional rights. At this early stage, the Court concludes that some of

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his allegations are legally sufficient. For the reasons below, the motion to proceed IFP is

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granted, and the complaint partially survives the mandatory screening.

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MOTION TO PROCEED IN FORMA PAUPERIS

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Parties instituting most civil actions in federal court must pay a filing fee of $405.1

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See 28 U.S.C. § 1914(a). A party may initiate a civil action without prepaying the required

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filing fee if the Court grants leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a);

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Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007).

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To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit

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regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234

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(9th Cir. 2015). Prisoners seeking to establish an inability to pay must also submit a

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In addition to the $350 statutory fee, civil litigants must pay an additional
administrative fee of $55. See 28 U.S.C. § 1914(a); Judicial Conference Schedule of Fees,
District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The additional $55
administrative fee does not apply to persons granted leave to proceed IFP. Id.
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“certified copy of the [prisoner’s] trust fund account statement (or institutional equivalent)

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for” “the 6-month period immediately preceding the filing of the complaint.”

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28 U.S.C. § 1915(a)(2). If the prisoner has no assets, the Court assesses no initial payment.

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See 28 U.S.C. §§ 1915(b)(1) & (4). But a prisoner who proceeds IFP and has “more than

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$10 in his account” must still pay the $350 statutory fee in installments regardless of

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whether their action is ultimately dismissed. 28 U.S.C. § 1915(b)(2); Bruce v. Samuels,

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577 U.S. 82, 84 (2016).

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With his motion, Kocontes provided a copy of his prison certificate and trust account

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statement. (See ECF 4.) During the six months before filing suit, Kocontes had an average

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monthly balance of $0.02 and average monthly deposits of $0.00. (Id. at 1.) And his

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available account balance was zero when he filed suit. (Id.) Kocontes has thus established

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an inability to prepay the required filing fee, and the Court grants his IFP motion. Although

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the Court assesses no initial payment, because he currently has less than $10 in his account,

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Kocontes must pay the full $350 filing fee in monthly installments equaling “20 percent of

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the preceding month’s income credited” to his account “each time the amount in [his]

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account exceeds $10.” 28 U.S.C. § 1915(b)(2).

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SCREENING
A.

Legal Standards

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The Court must screen Kocontes’s complaint and dismiss it to the extent that it is

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frivolous, malicious, fails to state a claim, or seeks damages from defendants who are

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immune. See 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). “The standard for determining

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whether Plaintiff has failed to state a claim upon which relief can be granted under

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§ 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for

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failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). That is, a

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complaint must “contain sufficient factual matter” “to state a claim to relief that is plausible

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on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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B.

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Kocontes’s Allegations
Kocontes alleges he had prostate surgery at an outside hospital and was returned to
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prison with a catheter the next day. (ECF 1, at 3.) He claims defendant California

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Correctional Health Care Services (CCHCS) failed to provide transportation to the hospital

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for a follow-up appointment, which he missed. (Id.)

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On the night of that missed appointment, Kocontes experienced a “sudden gush of

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blood and tissue in his catheter bag, which he reported” to the prison clinic. (Id.) Defendant

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nurse Guimbaolibot eventually saw him, and Kocontes showed Guimbaolibot his catheter

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bag while “express[ing] concern about how little fluid had drained overnight, and

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point[ing] out that the bowl at the top of the bag was empty.” (Id.) He told Guimbaolibot

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that “his pain had increased and he felt bloated.” (Id.) Guimbaolibot “briefly glanced at the

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bag, gave [Kocontes] the ointment he requested, and told [Kocontes] if he continued to

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have concerns about the catheter to submit a health care services request form” before

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“terminating the examination.” (Id.)

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Kocontes returned to his cell where about an hour later “blood and urine began

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spewing from the end of his penis past the catheter tube.” (Id.) His throat was still too

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hoarse from the throat tube used during surgery to yell for help; he began banging on his

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cell door, but no one was close enough to hear him. (Id. at 3–4.) “Realizing that the catheter

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was plugged and the only way to stop the flow under pressure was to remove it, [he] yanked

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out the catheter. This caused severe trauma to his penis, which continued to bleed.” (Id.

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at 4.) Kocontes ended up going to the emergency room where “he was finally able to get

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someone’s attention.” (Id.) He “continues to experience burning and pain when urinating,”

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and “has continuing anxiety about urinating because he never knows how severe the

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burning pain will be.” (Id. at 4, 7.)

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Kocontes alleges CCHCS failed to “evaluate whether the scarring inside [my] penis

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can be treated,” and that “given his medical training, Guimbaolibot had to know what

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would happen to [Kocontes] when pressure in his bladder built up from the plugged

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catheter. His failure to ensure [Kocontes]’s catheter was promptly changed was reckless

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disregard.” (ECF 1, at 7.) Kocontes claims defendants’ failure to provide him adequate and

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immediate medical care in response to an obvious emergency (1) showed deliberate
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indifference to a serious medical need in violation of the Eighth Amendment,

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(2) demonstrated a failure to summon medical care in violation of California Government

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Code section 845.6, and (3) amounted to intentional infliction of emotional distress under

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California common law. (Id. at 4, 6–7.)

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C.

Discussion

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1. Eighth Amendment Deliberate Indifference

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Kocontes alleges that the defendants violated his Eighth Amendment rights with

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their deliberate indifference to his serious medical needs. To succeed, he must sufficiently

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allege: (1) “the existence of a serious medical need” and (2) the prison official’s “deliberate

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indifference” to that need. Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014).

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Officials are deliberately indifferent when they “know[] of and disregard[] an excessive

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risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This

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includes circumstances when officials “deny, delay, or intentionally interfere with medical

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treatment.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002). Kocontes brings

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deliberate-indifference claims against nurse Guimbaolibot and California Correctional

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Health Care Services.

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a. Nurse Guimbaolibot

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Kocontes’s allegations with respect to the serious-medical-need prong are sufficient

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to survive the “low threshold” applicable at screening. See Wilhelm v. Rotman, 680 F.3d

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1113, 1123 (2012); see also Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994)

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(“[I]ndicia of a ‘serious’ medical need include (1) the existence of an injury that a

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reasonable doctor would find important and worthy of comment or treatment, (2) the

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presence of a medical condition that significantly affects an individual’s daily activities,

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and (3) the existence of chronic or substantial pain.”).

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To succeed on the second prong, Kocontes must plausibly allege “(a) a purposeful

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act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused

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by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). A prison official

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can be held liable only if he “knows of and disregards an excessive risk to inmate health or
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safety; the official must both be aware of facts from which the inference could be drawn

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that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer,

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511 U.S. at 837.

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Kocontes alleges that, “given his medical training, Guimbaolibot had to know what

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would happen to [Kocontes] when pressure in his bladder built up from the plugged

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catheter. His failure to ensure [Kocontes]’s catheter was promptly changed was reckless

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disregard.” (ECF 1, at 7.) At this stage of the analysis, Kocontes plausibly alleges

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Guimbaolibot’s deliberate indifference. Within one week of Kocontes’s prostate surgery,

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he felt blood and urine gushing into his catheter, noticed the empty bag at the end of his

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catheter, and reported it all to Guimbaolibot. (Id. at 3.) Kocontes also described his

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increased pain and bloating to Guimbaolibot. (Id.) Yet Guimbaolibot allegedly failed to

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further inspect the catheter. (Id.) Guimbaolibot “briefly glanced at the bag,” prescribed

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ointment, and “terminat[ed] the examination.” (Id.)

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Given all Kocontes allegedly reported, Guimbaolibot’s purported cursory inspection

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of the catheter bag indicates a “failure to respond” to the “pain or possible medical need”

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associated with Kocontes’s post-surgery catheter issues. See Jett, 439 F.3d at 1096. Further,

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roughly an hour after this appointment, “blood and urine began spewing from the end of

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[Kocontes’s] penis past the catheter tube,” (ECF 1, at 3), so Kocontes has plausibly alleged

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that there was “harm caused by the indifference.” See Jett, 439 F.3d at 1096.

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Taken together, Kocontes’s allegations suggest Guimbaolibot “kn[ew] of” the

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serious risk to Kocontes’s health and “disregard[ed]” the risk. Given these facts, and

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Guimbaolibot’s medical training, Kocontes has reasonably alleged that Guimbaolibot “had

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to know what would happen” “when pressure in [Kocontes’s] bladder built up from the

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plugged catheter.” (ECF 1, at 7.) Thus, Kocontes has plausibly alleged deliberate

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indifference to his serious medical need.

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b. California Correctional Health Care Services

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Kocontes alleges defendant California Correctional Health Care Services failed to

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provide transportation to the outside hospital for his follow-up appointment and failed to
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“evaluate whether the scarring inside [his] penis can be treated.” (ECF 1, at 3, 7.) But

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CCHCS is an agency of the State of California, not a “person” subject to suit under § 1983,

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and thus has Eleventh Amendment immunity. See Pennhurst State Sch. & Hosp. v.

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Halderman, 465 U.S. 89, 100 (1984) (noting that the Eleventh Amendment “proscribe[s]”

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lawsuits against a “State or one of its agencies or departments”); see also Dragasits v.

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California, No. 16cv1998-BEN (JLB), 2016 WL 6804947, at *3 (S.D. Cal. Nov. 15, 2016)

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(“California’s Department of Corrections and Rehabilitation and any state prison,

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correctional agency, sub-division, or department under its jurisdiction, are not ‘persons’

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subject to suit under § 1983”).

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Absent a waiver, the “Eleventh Amendment bars suits for money damages in federal

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court against a state, its agencies, and state officials acting in their official capacities.”

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Aholelei v. Dep’t of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). “The State of

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California has not waived its Eleventh Amendment immunity with respect to claims for

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money damages brought under § 1983 in federal court, and the Supreme Court has held

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that § 1983 was not intended to abrogate a State’s Eleventh Amendment immunity.” Brown

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v. California Dep’t of Corr., 554 F.3d 747, 752 (9th Cir. 2009).

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But the Eleventh Amendment does not bar claims for injunctive relief against state

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officials in their official capacities. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71

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n.10 (1989) (“a state official in his or her official capacity, when sued for injunctive relief,

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would be a person under § 1983”). To the extent Kocontes seeks injunctive relief to require

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CCHCS to “evaluate whether the scarring inside [his] penis can be treated,” CCHCS is not

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a proper defendant for such a claim. (See ECF 1, at 7.) When a plaintiff seeks prospective

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injunctive relief, the proper defendant is the official responsible for ensuring that the

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injunctive relief is carried out. See Hartmann v. California Dep’t of Corr. & Rehab.,

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707 F.3d 1114, 1127 (9th Cir. 2013) (recognizing that a plaintiff seeking injunctive relief

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must “name the official within the entity who can appropriately respond to injunctive

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relief”).

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Kocontes has not named a defendant with authority to require CCHCS to medically
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evaluate him. See, e.g., Pouncil v. Tilton, 704 F.3d 568, 576 (9th Cir. 2012) (noting

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plaintiffs must name the person “responsible for ensuring that injunctive relief” is “carried

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out, even if he was not personally involved in the decision” underlying plaintiffs’ claims);

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Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983) (“A federal court may issue an injunction

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if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim;

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it may not attempt to determine the rights of persons not before the court.”).

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Thus, the Eighth Amendment deliberate-indifference claim against defendant
CCHCS is dismissed.

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2. Cal. Gov’t Code § 845.6

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Kocontes also asserts claims against CCHCS and Guimbaolibot under California

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Government Code section 845.6. (ECF 1, at 6.) That statute creates liability for any “public

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employee,” as well as “the public entity where the employee is acting within the scope of

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his employment,” “if the employee knows or has reason to know that the prisoner is in need

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of immediate medical care and he fails to take reasonable action to summon such medical

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care.” Cal. Gov’t Code § 845.6.

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a. California Correctional Health Care Services

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CCHCS is allegedly a “division of” the California Department of Corrections and

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Rehabilitation, (ECF 1, at 2), which is an “arm[] of the” California “state government,” see

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Bennett v. California, 406 F.2d 36, 39 (9th Cir. 1969). Absent a waiver, the “Eleventh

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Amendment bars suits for money damages in federal court against a state, its agencies, and

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state officials acting in their official capacities.” Aholelei, 488 F.3d at 1147. And states

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only waive their Eleventh Amendment immunity when they waive it with “the most

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express language or by such overwhelming implications from the text as will leave no room

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for any other reasonable construction.” Edelman v. Jordan, 415 U.S. 651, 673 (1974)

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(cleaned up). Further, states’ consent to suit in courts of their “own creation” does not

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indicate “consent to suit in federal court.” College Sav. Bank v. Florida Prepaid

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Postsecondary Educ. Expense Bd., 527 U.S. 666, 676 (1999). Nor does authorization to

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generally “sue and be sued” or be sued “in any court of competent jurisdiction.” Id.
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(cleaned up).

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In section 845.6, California authorized lawsuits against a “public entity” when its

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“employee is acting within the scope of his employment.” Cal. Gov’t Code § 845.6. But

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the statute makes no mention of lawsuits in federal court, so one “reasonable [statutory]

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construction” is that California only consented to lawsuits in its own state courts. See

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Edelman, 415 U.S. at 673. Because there is no “express language” or “overwhelming

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implication[]” that California waived its Eleventh Amendment immunity, Kocontes’s

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845.6 claim against CCHCS is barred. See College Sav. Bank, 527 U.S. at 676.

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b. Nurse Guimbaolibot

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Kocontes’s section 845.6 claim against Guimbaolibot, however, is not barred by the

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Eleventh Amendment. See Jett, 439 F.3d at 1093 (allowing a section 845.6 claim in federal

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court against California prison medical professionals). To succeed on a section 845.6 claim,

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California state intermediate courts and the Ninth Circuit U.S. Court of Appeals agree that

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plaintiffs must establish “three elements: (1) the public employee knew or had reason to

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know of the need (2) for immediate medical care, and (3) failed to reasonably summon

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such care.” Jett, 439 F.3d at 1099 (citing Cal. Gov’t Code § 845.6); Castaneda v.

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Department of Corr. & Rehab., 151 Cal. Rptr. 3d 648, 663 (Ct. App. 2013). The courts

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disagree, however, about the scope of the second and third elements—and this case lies at

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the crux of that disagreement.

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i.

Ninth Circuit Court of Appeals’ Analysis

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In Jett, the Ninth Circuit held that defendants properly “summon” “immediate

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medical care” only when they “both diagnos[e] and treat[]” plaintiffs. 439 F.3d at 1099.

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The incarcerated plaintiff in Jett fractured his thumb, and an emergency-room doctor saw

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him that same day. Id. at 1094. Despite a referral to see an orthopedic specialist “early

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th[at] week,” the plaintiff did not see one until nearly six months later. Id. at 1094–95. By

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then, his “fracture had healed improperly.” Id. at 1095. During those months, the plaintiff

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had a series of medical appointments for his hand, but none with orthopedic specialists. Id.

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at 1094–95. The Jett court ruled that the defendants “violated § 845.6 if they had
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knowledge of [plaintiff]’s need for immediate medical care to set and cast his fracture and

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did not summon such care.” Id. at 1099.

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ii.

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In Castaneda, however, a California appellate court found that Jett’s section 845.6

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analysis “ignores California authority interpreting that statute” and “expand[s]” public-

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entity liability “beyond that contemplated by the Legislature.” 151 Cal. Rptr. 3d at 666.

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The Castaneda state-prisoner plaintiff saw medical providers who thrice referred him to a

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urologist—including an “[u]rgent urology referral”—but he never saw one while in state

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custody. Id. at 653–54. The defendant prison then transferred him to Immigration and

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Customs Enforcement detention, and he spent his year in ICE detention requesting proper

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medical care, also to no avail. Id. at 654; Hui v. Castaneda, 559 U.S. 799, 802–03 (2010).

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Within one month of his release from detention, he was diagnosed with “penile cancer”

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and “had his penis amputated.” Hui, 559 U.S. at 803. He died one year later. Id.

California State Appellate Court’s Analysis

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Plaintiff argued that Jett’s section 845.6 analysis required the state to “summon care

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that the prisoner ‘actually need[ed].’” Castaneda, 151 Cal. Rptr. 3d at 665. But the

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California appellate court held that once the state agency “summoned” medical providers,

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to “examine” the plaintiff, “it summoned health care as contemplated by section 845.6.”

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Id. at 664.

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The California court reasoned that section 845.6 is “very narrowly written” and only

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authorizes causes of action for “failure to summon medical care,” not for “malpractice in

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providing that care.” Id. at 663; see also Nelson v. State of California, 188 Cal. Rptr. 479,

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485 (Ct. App. 1982) (holding any failure to “provide necessary medication or treatment”

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once “summoned,” “cannot be characterized as a failure to summon medical care”).

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iii.

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“When interpreting state law,” federal courts are “bound by the decision of the

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highest state court.” In re Kirkland, 915 F.2d 1236, 1238 (9th Cir. 1990). But “[i]n the

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absence of such a decision, a federal court must predict how the highest state court would

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decide the issue using intermediate appellate court decisions, decisions from other
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Controlling Interpretation

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jurisdictions, statutes, treatises, and restatements as guidance.” Id. at 1239. Absent

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“convincing evidence that the highest” state court “would decide differently” than the state

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intermediate court, federal courts are “obligated to follow the decisions of the state’s

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intermediate courts.” Id. (cleaned up).

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Notwithstanding these principles, United States district courts can only “disregard

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[Ninth Circuit] precedent” when “intervening [United States] Supreme Court authority is

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clearly irreconcilable with” the Ninth Circuit’s earlier precedent. Day v. Apoliona, 496 F.3d

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1027, 1031 (9th Cir. 2007). Otherwise, district courts are “bound by” the Ninth Circuit’s

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holdings. Id.

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The California State Supreme Court has not weighed in here on how courts should

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interpret section 845.6—it denied review of Castaneda. See 151 Cal. Rptr. 3d at 648. And

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the Ninth Circuit has not rescinded its Jett standard. See Horton by Horton v. City of

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Santa Maria, 915 F.3d 592, 607–08 (9th Cir. 2019) (applying Jett). So, although this Court

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should look to Castaneda for “guidance” when interpreting section 845.6, it is “bound” by

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Jett. See Kirkland, 915 F.2d at 1239; Day, 496 F.3d at 1031. Thus, when the Ninth Circuit

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predicted how it believes California’s highest court would interpret section 845.6 in Jett, it

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bound this Court with that interpretation.

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iv.

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Turning to the Ninth Circuit’s application of the relevant three-part test, first,

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Kocontes sufficiently alleges that the statute implicates Guimbaolibot as a “public

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employee.” (ECF 1, at 2 (Guimaolibot “is employed by the Calif. Dept. of Corrections +

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Rehabilitation”)); see Jett, 439 F.3d at 1099. Further, Kocontes told Guimbaolibot about

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the blood and urine he felt gushing into his catheter, the surprisingly empty catheter bag,

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and his increased pain and bloating. (ECF 1, at 3.) So the claim survives the first Jett prong,

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as Guimbaolibot, a “public employee,” “knew or had reason to know” of Kocontes’s

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circumstance. See Jett, 439 F.3d at 1099.

Applying Jett

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Second, Kocontes’s situation implicated a need for “immediate medical care” given

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he was in his post-prostate-operation period, in pain, and having catheter issues. (ECF 1,
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at 3); see Jett, 439 F.3d at 1099.

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Finally, Guimbaolibot “failed to reasonably summon” immediate medical care as

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required by the Ninth Circuit. See Jett, 439 F.3d at 1099. As previously discussed, Jett held

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that section 845.6 requires defendants to “both diagnos[e] and treat[]” plaintiffs. Id. Here,

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Guimbaolibot “briefly glanced at the bag,” prescribed ointment, and “terminat[ed] the

6

examination.” (ECF 1, at 3.) This failure to inspect the bag in conjunction with the fact that

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“blood and urine began spewing from the end of [Kocontes’s] penis past the catheter tube”

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within roughly an hour of the appointment indicates a failure to properly “diagnos[e] and

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treat[]” the issue. (Id.); see Jett, 439 F.3d at 1099. Like in Jett, even though Kocontes saw

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a medical provider, Kocontes’s allegations raise a question as to whether Guimbaolibot

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“had knowledge of” Kocontes’s “need for [an] immediate” catheter evaluation but “did not

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summon such care.” See 439 F.3d at 1099.

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14

Consequently, Kocontes’s section 845.6 claim against Guimbaolibot survives this
Court’s screening.

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3. Intentional Infliction of Emotional Distress

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Kocontes also alleges a state-law claim of intentional infliction of emotional distress

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against both defendants. (See ECF 1, at 7.) The claim fails against both.

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First, his intentional-infliction claim against CCHCS fails because, as previously

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discussed, absent a waiver, the “Eleventh Amendment bars suits for money damages in

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federal court against a state, its agencies, and state officials acting in their official

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capacities.” Aholelei, 488 F.3d at 1147. And courts “‘indulge every reasonable presumption

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against waiver’ of fundamental constitutional rights,” including “[s]tate sovereign

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immunity.” College Sav. Bank, 527 U.S. at 682 (quoting Aetna Ins. Co. v. Kennedy ex rel.

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Bogash, 301 U.S. 389, 393 (1937)). There is no evidence California has waived its

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Eleventh Amendment immunity for intentional-infliction-of-emotional-distress claims in

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federal court, so that damages claim against CCHCS is dismissed. See Hobdy v. Los

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Angeles Unified Sch. Dist., 386 F. App’x 722, 724–25 (9th Cir. 2010).

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Second, Kocontes’s claim against Guimbaolibot fails because he has not alleged that
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he has suffered sufficiently “extreme or severe emotional distress.” See So v. Shin, 151 Cal.

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Rptr. 3d 257, 271 (Ct. App. 2013). The elements of a claim of intentional infliction of

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emotional distress are “(1) the defendant engages in extreme and outrageous conduct with

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the intent to cause, or with reckless disregard for the probability of causing, emotional

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distress; (2) the plaintiff suffers extreme or severe emotional distress; and (3) the

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defendant’s extreme and outrageous conduct was the actual and proximate cause of the

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plaintiff’s extreme or severe emotional distress.” Id.; see also Sabow v. United States,

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93 F.3d 1445, 1454 (9th Cir. 1996).

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For the emotional distress to be sufficiently “extreme or severe,” plaintiffs must

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experience “emotional distress of such substantial quality or enduring quality that no

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reasonable person in civilized society should be expected to endure it.” Potter v. Firestone

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Tire & Rubber Co., 6 Cal. 4th 965, 1004 (1993) (cleaned up). The “requisite emotional

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distress may consist of any highly unpleasant mental reaction such as fright, grief, shame,

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humiliation, embarrassment, anger, chagrin, disappointment[,] or worry.” Fletcher v.

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Western Nat’l Life Ins. Co., 89 Cal. Rptr. 78, 91 (Ct. App. 1970). But mere “anxiety” is

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insufficient. See Hughes v. Pair, 46 Cal. 4th 1035, 1051 (2009); see also Lawler v.

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Montblanc N. Am., LLC, 704 F.3d 1235, 1246 (9th Cir. 2013) (holding that anxiety,

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sleeplessness, upset stomach, and muscle twitches alone do not rise to the level of

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“severe”). But see Kelly-Zurian v. Wohl Shoe Co., 27 Cal. Rptr. 2d 457, 463 (Ct. App.

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1994) (holding that “panic attacks consisting of anxiety, tightness in chest,” “and heart

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palpitations” in addition to insomnia, post-traumatic stress disorder, and depression

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establish “substantial evidence of significant emotional distress”).

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Kocontes alleges here that he “has continuing anxiety about urinating because he

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never knows how severe the burning pain will be.” (ECF 1, at 7.) But mere “anxiety” does

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not rise to the requisite “extreme or severe emotional distress” level, so his intentional-

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infliction claim against Guimbaolibot fails as well. See Hughes, 46 Cal. 4th at 1051.

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D.

Leave to Amend

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“A district court should not dismiss a pro se complaint without leave to amend unless

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it is absolutely clear that the deficiencies of the complaint could not be cured by

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amendment.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (quotation marks

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omitted). Because Kocontes’s Eighth Amendment, California Government Code section

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845.6, and intentional-infliction claims for damages against the California Correctional

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Health Care Services are barred, those claims are beyond repair and correspondingly

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dismissed without leave to amend.2

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But it is not “absolutely clear” that Kocontes’s intentional-infliction-of-emotional-

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distress claim against Guimbaolibot is beyond repair, so he may amend his complaint to

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correct the deficiencies identified in this order by February 14, 2025. If he files an amended

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complaint, he must replead any claims that he wants this Court to consider. See Lacey v.

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Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012). The Court “will consider those

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[original] claims to be waived if not repled.” Id.

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If Kocontes does not file an amended complaint by that date, his two surviving

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claims against Guimbaolibot still stand: (1) Eighth Amendment deliberate indifference and

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(2) California Government Code section 845.6.

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CONCLUSION

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Accordingly, the Court:

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1.

GRANTS Kocontes’s motion to proceed IFP.

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2.

DIRECTS the Secretary of the CDCR, or his designee, to collect the $350

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filing fee from Kocontes’s prison trust account in monthly payments equal to 20% of the

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preceding month’s income each time the amount in his account exceeds $10, and forward

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those payments to the Clerk of the Court. 28 U.S.C. § 1915(b)(2).

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To the extent Kocontes seeks injunctive relief requiring CCHCS to “evaluate
whether the scarring inside [his] penis can be treated,” he may amend his complaint to
name an appropriate defendant by February 14, 2025. (See ECF 1, at 7.)
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24-cv-1513-AGS-AHG

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3.

DISMISSES Kocontes’s Eighth Amendment, California Government Code

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section 845.6, and intentional-infliction-of-emotional-distress claims against defendant

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California Correctional Health Care Services without leave to amend.

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4.

DISMISSES Kocontes’s intentional-infliction-of-emotional-distress claim

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against Guimbaolibot with leave to amend. If Kocontes would like to amend his complaint

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to address the deficiencies identified in this order, he must do so by February 14, 2025.

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Plaintiff’s first amended complaint must be complete without reference to his original

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pleading. See CivLR 15.1(a). Any defendants not named and any claims not realleged in

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the amended complaint will be considered waived. See Lacey, 693 F.3d at 928.

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5.

DIRECTS the Clerk of the Court to serve a copy of this order on Jeff

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Macomber, Secretary, California Department of Corrections and Rehabilitation, P.O. Box

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942883, Sacramento, California 94283-0001.

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Dated: January 3, 2025

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___________________________

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Andrew G. Schopler
United States District Judge

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24-cv-1513-AGS-AHG