Quezada v. State of California ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE MIGUEL QUEZADA, No. 1:20-cv-00959-DAD-SAB 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 14 STATE OF CALIFORNIA, et al., (Doc. No. 5) 15 Defendants. 16 17 18 This matter is before the court on the motion to dismiss filed by defendants on August 31, 19 2020. (Doc. No. 5.) Pursuant to General Order No. 617 addressing the public health emergency 20 posed by the COVID-19 pandemic, defendants’ motion was taken under submission on the 21 papers. (Doc. No. 6.) For the reasons explained below, the court will grant the pending motion to 22 dismiss. 23 BACKGROUND 24 On April 9, 2020, plaintiff Jose Miguel Quezada, a former inmate of California 25 Department of Corrections (“CDCR”) who was incarcerated at all relevant times at Kern Valley 26 State Prison (“KVSP”), filed a complaint in this civil rights action in the Kern County Superior 27 Court naming the following defendants: the State of California (“the State”), the CDCR, 28 correctional officers R. Morales, J. Swanson, and DOES 1–20 (unknown correctional officers 1 working at KVSP as employees of the State and CDCR). (Doc. No. 1 at 6–7.) On July 8, 2020, 2 defendants State, CDCR, Morales, and Swanson (collectively, “defendants”) filed a notice of 3 removal, removing this action to this federal court. (Doc. No. 1.) 4 In his complaint, plaintiff alleges as follows. Between approximately 10:00 a.m. and 5 11:00 a.m. on June 26, 2019, a fist fight broke out between two inmates in the Facility “D” Patio 6 area at KVSP. (Doc. No. 1 ¶ 10.)1 Plaintiff was not involved in the altercation and was in an area 7 of the yard that was separated by a fence from the area where those inmates were fighting. (Id. at 8 ¶ 11.) Correctional officers shouted a “get down” command to all inmates in the yard, and upon 9 hearing the command, plaintiff and the inmates around him immediately complied by laying on 10 the ground in a prone position. (Id. at ¶¶ 11, 12.) 11 Defendant Morales angrily approached plaintiff and claimed that plaintiff had not gotten 12 down fast enough, even though plaintiff got down immediately and was already down as 13 defendant Morales approached him. (Id. at ¶ 13.) Defendant Morales “handcuffed plaintiff and 14 yanked the handcuffs high over plaintiff’s back, toward his head, as in the manner of ‘chicken 15 winging,’ which caused plaintiff excruciating pain.” (Id.) Plaintiff cried out in pain and pleaded 16 for defendant Morales to stop, but defendant Morales responded that plaintiff should “stop 17 resisting.” (Id.) Plaintiff asserts that because he “complied with all commands and was not 18 offering any resistance,” defendant Morales made this comment to mock plaintiff and suggest a 19 false pretext his conduct. (Id.) 20 Around the same time, defendant Swanson also approached plaintiff with visible anger, 21 and “slammed his knee onto the back of plaintiff’s head and neck, smashing and grinding 22 plaintiff’s head into the hard ground,” which opened a gash on plaintiff’s face and caused 23 excruciating pain. (Id. at ¶ 14.) Defendant Morales then stood on plaintiff’s back, causing further 24 pain. (Id. at ¶ 15.) Plaintiff cried out, pleading with defendants Morales and Swanson to stop and 25 allow plaintiff to be seen by a doctor. (Id.) When plaintiff asked defendants Morales and 26 Swanson why they were doing this to him, they “mocked and taunted plaintiff by yelling 27 1 Paragraph references herein refer to the numbered paragraphs of the complaint (Doc. No. 1 at 28 6–25), not to the numbered paragraphs in the notice of removal (Doc. No. 1 at 1–2). 1 profanities at him, including telling him to ‘shut up, b*tch,’ and by threatening further physical 2 violence against plaintiff.” (Id.) 3 During this incident, plaintiff remained face down on the ground. (Id. at ¶ 16.) Prior to 4 and during this incident, plaintiff did not present a threat to anyone’s safety, physically resist, or 5 fail to comply with any of the correctional officers’ commands. (Id.) It appeared to plaintiff 6 throughout the incident that defendants Morales and Swanson were angry that a fight had broken 7 out and arbitrarily, maliciously, and sadistically directed their anger towards him and inflicted 8 punishment on him, “possibly to ‘send a message’ to other inmates.” (Id. at ¶ 17.) 9 “Immediately following this incident, plaintiff complained that he had been subjected to 10 excessive and unjustified force, and he complained of severe pain experienced in his face, neck, 11 shoulders, back, and legs and requested to [be] taken to a hospital.” (Id. at ¶ 18.) But, in his 12 complaint, plaintiff does not allege specifically who it was he had complained to in this regard. 13 Plaintiff alleges that he “was taken by correctional officers to a facility medical station,” though 14 plaintiff does not allege specifically which correctional officers took him to the medical station 15 (e.g., whether it was defendants Morales and Swanson, any of the DOE defendants, or other 16 officers who are not defendants in this action). (Id.) At the medical station, “[f]acility staff 17 performed a hasty and perfunctory evaluation of plaintiff, and then correctional officers quickly 18 took plaintiff and placed him in a temporary holding cell without treatment of any of his injuries 19 and with an open, unbandaged wound on his face.” (Id.) Plaintiff does not name any of the 20 medical station “facility staff” members as defendants in his complaint. In addition, it is not clear 21 whether plaintiff’s reference in this allegation of his complaint to “correctional officers” is 22 intended to include defendants Morales and Swanson, any of the DOE defendants, or other 23 officers who are not defendants in this action. 24 After remaining in the holding cell “for an unreasonably long period of time,” plaintiff 25 was returned to his cell, where he passed out from his injuries. (Id. at ¶ 19.) Surrounding nearby 26 inmates alerted correctional officers to plaintiff’s distress and “[o]nly then was plaintiff taken by 27 Defendants to an outside hospital,” where he “was examined given X-ray and CT scans, and had 28 his head wound sealed.” (Id.) Plaintiff does not specify in his complaint who returned him to his 1 cell, which officers were alerted to his distress by nearby inmates, and which “Defendants” out of 2 the 25 defendants named in his complaint took him to an outside hospital. Plaintiff alleges that as 3 a result of this incident, he “suffered and is suffering several injuries,” including bruises and 4 scratches to the right side of his face and right eye, pain in his neck and left shoulder, headaches, 5 and blurred vision, as well as “persisting mental and emotional injury.” (Id. at ¶ 20.) 6 Plaintiff further alleges that “defendant Swanson had a reputation among KVSP officials, 7 staff, employees, and inmates as being extremely and unnecessarily aggressive towards inmates,” 8 including unnecessarily punching an inmate in the face or head, rendering the inmate 9 unconscious. (Id. at ¶ 22.) With regard to defendant Swanson’s aggression towards him in the 10 incident precipitating this lawsuit, plaintiff alleges that when he was being taken to be evaluated 11 and placed in a holding cell, he heard one of the other correctional officers say to defendant 12 Swanson, “I don’t know if you’re going to get away with this one, Swanson.” (Id.) 13 Plaintiff also alleges that the brutal treatment by defendant Morales and Swanson in this 14 incident “was consistent with a general practice followed by these and certain other [] 15 correctional officers at KVSP whereby those officers used overly aggressive and violent force in 16 responding to prisoner incidents, including by using such force” when there was no need for force 17 or that need had passed. (Id. at ¶ 21.) As an example, plaintiff describes one incident that he is 18 aware of in which a mentally ill inmate “snatched a can of pepper spray from an officer’s belt,” 19 and after force was used to subdue the inmate and return him to his cell, several officers severely 20 and needlessly beat that inmate. (Id.) According to plaintiff, “prison officials charged with 21 reviewing, supervising, or disciplining officer conduct routinely failed to intervene to prevent or 22 punish such incidents.” (Id.) Plaintiff alleges on information and belief that defendants State and 23 CDCR have not disciplined defendants Morales, Swanson, and DOES 1–10 and continue to 24 employ them. (Id. at ¶ 24.) 25 Based on those allegations, plaintiff asserts the following eight causes of action in his 26 complaint: (1) a claim against defendants Morales and Swanson for assault and battery; (2) a 27 claim under California Civil Code § 52.1, the California Bane Act, against defendants Morales 28 and Swanson; (3) a claim against defendants Morales and Swanson for use of excessive 1 force in violation of Article 1 Section 17 of the California Constitution; (4) a § 1983 claim against 2 defendants Morales and Swanson for use of excessive force in violation of the Eighth 3 Amendment to the U.S. Constitution; (5) a claim against defendants Morales, Swanson, and 4 unknown correctional officers DOES 1–10 for deliberate indifference to his serious medical 5 needs in violation of Article 1 Section 17 of the California Constitution; (6) a § 1983 claim 6 against defendants Morales, Swanson, and unknown correctional officers DOES 1–10 for 7 deliberate indifference to his serious medical needs in violation of the Eighth Amendment; (7) a 8 claim of negligent failure to train, supervise, and/or discipline against defendants DOES 11-20, 9 unknown correctional officers in supervisory roles; and (8) a claim of negligent retention against 10 defendants DOES 11-20, unknown correctional officers in supervisory roles. (Doc. No. 1.) 11 Although plaintiff listed the State and CDCR as defendants in the caption on the first page of his 12 complaint, based on the allegations in the complaint, none of plaintiff’s claims are brought 13 against either of those defendants. 14 On August 31, 2020, defendants State, CDCR, Morales, and Swanson filed a motion to 15 dismiss plaintiff’s complaint in its entirety as to defendants State and CDCR and to dismiss 16 plaintiff’s third, fifth, and sixth claims against defendants Morales and Swanson. (Doc. Nos. 5; 5- 17 1 at 8.) On September 23, 2020, plaintiff filed an opposition to the pending motion to dismiss, 18 and on September 30, 3020, defendants filed their reply thereto. (Doc. Nos. 7, 8.) 19 LEGAL STANDARD 20 The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) 21 is to test the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 22 2001). A dismissal may be warranted where there is “the lack of a cognizable legal theory or the 23 absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 24 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A claim for relief must contain “a short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 26 Though Rule 8(a) does not require detailed factual allegations, a plaintiff is required to allege 27 “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 28 550 U.S. 544, 570 (2007). A claim is plausible on its face “when the plaintiff pleads factual 1 content that allows the court to draw the reasonable inference that the defendant is liable for the 2 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 3 In determining whether a complaint states a claim on which relief may be granted, the 4 court accepts as true the allegations in the complaint and construes the allegations in the light 5 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 6 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth 7 of legal conclusions cast in the form of factual allegations. U.S. ex rel. Chunie v. Ringrose, 788 8 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, 9 “it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 10 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and conclusions” or “a 11 formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555; see also 12 Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, supported by 13 mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to assume that the 14 plaintiff “can prove facts which it has not alleged or that the defendants have violated the . . . laws 15 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 16 Council of Carpenters, 459 U.S. 519, 526 (1983). 17 ANALYSIS 18 A. Motion to Dismiss Plaintiff’s Complaint as to Defendants State and CDCR 19 As noted above, on the face of plaintiff’s complaint, none of his claims are alleged against 20 defendants State and CDCR. Defendants argue that dismissal of plaintiff’s complaint as to 21 defendants State and CDCR is appropriate because “[w]ithout identifying a single claim against 22 Defendants State of California or CDCR, Plaintiff’s Complaint cannot be said to give these 23 Defendants ‘fair notice’ of his claims against them,” and thus plaintiff’s complaint fails to comply 24 with the pleading requirements of Rule 8(a). (Doc. No. 5-1 at 5.) In addition, defendants argue 25 that even in substance, plaintiff has failed to state any claims against defendants State and CDCR 26 because “the Complaint contains no factual allegations sufficient to show that plaintiff is 27 plausibly entitled to relief from these Defendants.” (Id. at 5–6.) In that regard, defendants 28 emphasize that plaintiff “does not make any fact-based allegation showing that defendants State 1 of California or CDCR were aware of unconstitutional conduct of their subordinates and 2 condoned or acquiesced to such conduct” or factual allegations showing that the State or CDCR 3 “knew or had reason to know that defendants Morales or Swanson should not have been hired, or 4 that they were improperly trained.” (Id.) Further, defendants argue that plaintiff has provided no 5 basis in law to hold defendants State and CDCR “liable as employers for failing to fire 6 [defendants Morales and Swanson,] the officers alleged to have acted improperly.” (Id. at 5.) 7 In his opposition to the pending motion to dismiss, plaintiff states that he “inadvertently 8 did not list the State or CDCR in the caption under causes of action six, seven, or eight” and that 9 “each of these causes of action alleged the official policy and/or custom giving rise to liability for 10 the State or CDCR.” (Doc. No. 7 at 12.) Plaintiff requests that the court grant him leave to file 11 an amended complaint to cure his Rule 8(a) pleading deficiencies. (Id.) 12 In their reply, defendants reiterate the deficiencies they identified in their motion, but they 13 do not oppose plaintiff’s request for leave to file an amended complaint to address those 14 deficiencies. (Doc. No. 8 at 3.) 15 Accordingly, the court will grant defendants’ motion to dismiss plaintiff’s complaint as to 16 defendants State and CDCR but will grant plaintiff leave to amend his complaint to sufficiently 17 allege claims against defendants State and CDCR. See Eminence Capital, LLC v. Aspeon, Inc., 18 316 F.3d 1048, 1051 (9th Cir. 2003) (noting that Rule 15 of the Federal Rules of Civil Procedure 19 instructs courts to “freely give leave when justice so requires” and that rule is “to be applied with 20 extreme liberality”). In light of the pleading deficiencies of plaintiff’s complaint and the court’s 21 granting of plaintiff’s request for leave to amend his complaint, it would be premature to address 22 the sufficiency of the few factual allegations in his complaint that mention defendants State and 23 CDCR. This, however, should not be construed as a determination by the court that if only 24 plaintiff had included defendants State and CDCR in the caption title for his sixth, seventh, and 25 eighth claims, that his allegations are otherwise sufficient to state a cognizable claim against 26 them. As to any amended complaint plaintiff may elect to file, plaintiff is reminded that 27 conclusory allegations of wrongdoing are insufficient to state a cognizable claim. See Twombly, 28 550 U.S. at 555; see also Iqbal, 556 U.S. at 676. 1 B. Motion to Dismiss Plaintiff’s Third, Fifth, and Sixth Causes of Action Against 2 Defendants Morales and Swanson 3 1. Plaintiff’s Third and Fifth Causes of Action under Cal. Const. art. I, § 17 4 In the pending motion, defendants argue that plaintiff’s third and fifth causes of action, in 5 which he alleges that defendants Morales and Swanson violated Article 1 Section 17 of the 6 California Constitution, should be dismissed because “California’s courts have expressly 7 determined that there is no private right of action for damages arising out of this clause of the 8 California Constitution.” (Doc. No. 5-1 at 6) (citing Giraldo v. Dep’t of Corr. & Rehab., 168 Cal. 9 App. 4th 231, 256 (2008)). Defendants also note that federal courts in California have concurred 10 with the decision by the California Court of Appeals in Giraldo. (Id.; see also Schmitz v. Asman, 11 No. 2:20-cv-00195-JAM-CKD, 2020 WL 3470475, at *7 (E.D. Cal. June 25, 2020) (“Federal 12 courts have repeatedly concurred with this [Giraldo] conclusion.”) (citing Hicks v. Hamkar, 2:13- 13 cv-01687-KJM-DB, 2016 WL 5847011, at *8 (E.D. Cal. Oct. 6, 2016) (“[U]nder Article I, § 17 14 of the California Constitution, which prohibits cruel or unusual punishment, . . . no private cause 15 of action for damages exists.”)). 16 In his opposition, plaintiff concedes that there is no private right of action for damages 17 pursuant to Article 1 Section 17 of the California Constitution, but he asserts that he can still seek 18 declaratory and injunctive relief as to that claim. (Doc. No. 7 at 16.) Although plaintiff states in 19 his opposition that he sufficiently stated his third and fifth causes of action because he “seeks 20 declaratory and injunctive relief” (id. at 17), that statement is simply not supported by the 21 contents of plaintiff’s complaint, which does not include any request for declaratory or injunctive 22 relief. Indeed, the words “declaratory” and “injunctive” do not appear in plaintiff’s prayer for 23 relief or anywhere else in plaintiff’s complaint. Nevertheless, plaintiff explicitly requests that the 24 court grant him leave to amend his complaint as to delineate these two claims as seeking 25 injunctive and declaratory relief. (Id. at 18.) 26 In their reply, defendants contend that “[i]t is unclear what injunctive relief Plaintiff could 27 truthfully seek in this case given that he is no longer in the custody of CDCR.” (Doc. No. 8 at 3– 28 4) (citing Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (concluding that prisoner’s claims 1 for injunctive relief were mooted by prisoner’s transfer to a different prison because he did not 2 demonstrate a reasonable expectation of returning to that prison)). Defendants also contend that 3 declaratory relief would not be appropriate in this case. (Doc. No. 8 at 4) (citing United States v. 4 State of Wash., 759 F.2d 1353, 1357 (9th Cir. 1985) (“Declaratory relief should be denied when it 5 will neither serve a useful purpose in clarifying and settling the legal relations in issue nor 6 terminate the proceedings and afford relief from the uncertainty and controversy faced by the 7 parties.”)) 8 Here, the court agrees with defendants that it is “patently obvious” that plaintiff’s 9 complaint does not include any claims for declaratory relief or injunctive relief at all. (See Doc. 10 No. 8 at 4.) Based on the prayer for relief as stated in his complaint, plaintiff seeks only damages. 11 (Doc. No. 1 at 23.) Because no private cause of action for damages exists under Article I, Section 12 17 of the California Constitution, plaintiff cannot maintain his third and fifth causes of action. 13 Accordingly, the court will grant defendants’ motion to dismiss these two causes of action due to 14 plaintiff’s failure to state a claim upon which relief may be granted. 15 As to plaintiff’s request for leave to amend these claims, the court is skeptical that 16 plaintiff will be able to state a valid claim for injunctive relief given that he not only is no longer 17 incarcerated at KVSP, he is not in CDCR’s custody at all anymore. Thus, it appears to the court 18 that plaintiff is not likely able to amend his complaint to include allegations sufficient to 19 demonstrate that he has any reasonable expectation of returning to KVSP. Notably, in his 20 opposition, plaintiff does not proffer any allegations that he would include in an amended 21 complaint to support a claim for injunctive or declaratory relief. Moreover, in the case that 22 plaintiff cites to support his assertion that he can seek declaratory and injunctive relief in this 23 action, Arroyo v. Tilton, No. 1:11-cv-01186 DLB PC, 2012 WL 1551655, at *1 (E.D. Cal. Apr. 24 30, 2012), the plaintiff was a current prisoner in CDCR’s custody and had not transferred 25 facilities, so the court concluded that the plaintiff had sufficiently stated his state law claim for 26 use of excessive force, but only “[i]nsofar as Plaintiff seeks declaratory and injunctive relief.” 27 Thus, plaintiff’s citation to the decision in Arroyo does not provide the court with any indication 28 of on what basis plaintiff would seek declaratory and injunctive relief in this case. 1 Nevertheless, out of an abundance of caution, the court will grant plaintiff leave to amend 2 his complaint to clarify that he seeks injunctive and declaratory relief on his third and fifth causes 3 of action and to sufficiently allege factual support for that requested relief. See Eminence 4 Capital, LLC, 316 F.3d at 1051. However, plaintiff is cautioned that in any amended complaint 5 he may elect to file, conclusory claims to injunctive and/or declaratory relief—without 6 descriptions of the particular relief sought and supporting factual allegations to demonstrate that 7 he is entitled to that relief under applicable law—are not sufficient to state a cognizable claim 8 upon which relief may be granted. In this regard, counsel is reminded of the obligations under 9 Rule 11 of the Federal Rules of Civil Procedure, and in particular, Rule 11(b)’s provision that by 10 presenting the court with a pleading, the attorney “certifies that to the best of the person’s 11 knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: . 12 . . the claims, defenses, and other legal contentions are warranted by existing law . . ..” Fed. R. 13 Civ. P. 11(b). 14 2. Plaintiff’s Sixth Cause of Action under § 1983 for Deliberate Indifference to His 15 Serious Medical Needs 16 To succeed on a § 1983 claim, a plaintiff must allege and ultimately show that: (1) the 17 conduct complained of was committed by a person acting under color of state law; and (2) the 18 conduct deprived the plaintiff of a federal constitutional or statutory right. Patel v. Kent Sch. 19 Dist., 648 F.3d 965, 971–72 (9th Cir. 2011) (citing Tatum v. City & County of San Francisco, 441 20 F.3d 1090, 1094 (9th Cir. 2006)). Here, plaintiff alleges that defendants Morales and Swanson 21 “were acting or purporting to act in the performance of their official duties” “when they failed to 22 procure or provide medical treatment to plaintiff in response to his need,” in violation of his 23 Eighth Amendment right to be free of cruel and unusual punishment. (Doc. No. 1 at ¶¶ 69, 71.) 24 To state an Eighth Amendment claim based on alleged inadequate medical treatment in 25 prison, an inmate must allege facts showing “deliberate indifference to serious medical needs.” 26 Estelle v. Gamble, 429 U.S. 97, 104 (1976). “In the Ninth Circuit, the test for deliberate 27 indifference consists of two parts.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). “First, 28 the plaintiff must show a ‘serious medical need’ by demonstrating that ‘failure to treat a 1 prisoner’s condition could result in further significant injury or the unnecessary and wanton 2 infliction of pain.’” Id. (citation omitted). “Second, the plaintiff must show the defendant’s 3 response to the need was deliberately indifferent.” Id. This second prong “may appear when 4 prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown 5 by the way in which prison physicians provide medical care.” Hutchinson v. United States, 838 6 F.2d 390, 394 (9th Cir. 1988). However, “[m]ere negligence in diagnosing or treating a medical 7 condition, without more, does not violate a prisoner’s Eighth Amendment rights.” Id. 8 In their pending motion, defendants assert that plaintiff fails to state a cognizable § 1983 9 claim against defendants Morales and Swanson for deliberate indifference to his serious medical 10 needs in violation of the Eighth Amendment. (Doc. No. 5-1 at 7–8.) According to defendants, 11 plaintiff’s allegations actually undercut his attempt to state a deliberate indifference claim against 12 defendants Morales and Swanson. (Id.) In particular, plaintiff expressly alleges that he received 13 medical attention immediately following the alleged incident with defendants Morales and 14 Swanson on June 26, 2019. (Id.) (citing Doc. No. 1 at 10.) But plaintiff does not allege any 15 involvement whatsoever by defendants Morales and Swanson past the point where he alleges that 16 he was taken to the medical station by (unspecified) correctional officers. Thus, defendants 17 contend that to the extent plaintiff’s sixth cause of action is based on his dissatisfaction with the 18 medical care he received at the facility medical station, or any care he received thereafter, or lack 19 thereof, it is clear that any allegations in that regard are insufficient to state a claim against 20 defendants Morales and Swanson, because plaintiff does not allege that they were involved in any 21 of those events. (Doc. No. 5-1 at 7–8.) 22 In his opposition, plaintiff does not address defendants’ argument in this regard or proffer 23 allegations to show that defendants Morales and Swanson were involved in those events. Rather, 24 plaintiff contends that defendants mispresented his allegation when they cherry-picked a quote 25 from his allegation to make it appear that plaintiff received medical attention immediately after 26 the incident, which is not what he alleged. (Doc. No. 7 at 20.) The referenced allegation in 27 ///// 28 ///// 1 paragraph 18 of plaintiff’s complaint states as follows: 2 Immediately following this incident, plaintiff complained that he had been subjected to excessive and unjustified force, and he 3 complained of severe pain experienced in his face, neck, shoulders, back, and legs and requested to [be] taken to a hospital. Plaintiff 4 was taken by correctional officers to a facility medical station. Facility staff performed a hasty and perfunctory evaluation of 5 plaintiff, and then correctional officers quickly took plaintiff and placed him in a temporary holding cell without treatment of any of 6 his injuries and with an open, unbandaged wound on his face. 7 (Doc. No. 1 at ¶ 18.) 8 Although the court tends to agree that it may be misleading to summarize this allegation 9 as plaintiff having been taken immediately to the medical station, defendants’ summarization of 10 this allegation is not patently unreasonable. The allegation does not state any time frames or 11 approximate lengths of time between these events. A fair reading of this allegation may be that 12 plaintiff was taken to the medical station soon after he complained about his pain. It is notable 13 that in opposing the pending motion, plaintiff has not proffered any allegations to clarify the 14 relevant time frames or to show that there was any delay in the officers taking him to the medical 15 station following the incident. In other words, plaintiff’s vague allegations beg the question, if he 16 was not taken immediately after the incident, then how much time had passed before he was taken 17 to the medical station. 18 In addition, because plaintiff’s allegation is vague as to who plaintiff complained to about 19 his pain, which correctional officers were involved in taking plaintiff to the medical station, and 20 which correctional officers were involved in placing plaintiff in a temporary holding cell after the 21 evaluation by staff at the medical station, it is not evident from the allegations of the complaint 22 that defendants Morales and Swanson were involved in those events. Plaintiff’s allegations fall 23 short of alleging that defendants Morales and Swanson specifically were involved in denying, 24 delaying, or intentionally interfering with the provision of medical treatment for plaintiff. 25 Plaintiff does allege that during the incident, he had “cr[ied] out in pain and to plead that 26 [defendants Morales and Swanson] cease the attack and allow plaintiff to be seen by a doctor.” 27 (Doc. No. 1 at ¶ 15.) But this sole allegation is insufficient to state a deliberate indifference claim 28 against defendants Morales and Swanson absent additional allegations that defendants Morales 1 and Swanson did not allow him be seen by a doctor (which is belied by the allegations in the 2 complaint that he was taken to the medical station) or that they somehow delayed and interfered 3 with him receiving medical attention (which, again, is belied by plaintiff’s allegations). 4 Accordingly, the court will grant defendants’ motion to dismiss plaintiff’s sixth cause of 5 action against defendants Morales and Swanson. Here too, however, out of an abundance of 6 caution, the court will grant plaintiff leave to amend his complaint to sufficiently state a 7 deliberate indifference claim against defendants Morales and Swanson. While the court expresses 8 no opinion on the matter, it is at least conceivable that plaintiff’s claim against defendants 9 Morales and Swanson for deliberate indifference to his serious medical needs could survive a 10 motion to dismiss if pled sufficiently. 11 CONCLUSION 12 For all of the reasons set forth above: 13 1. Defendants’ motion to dismiss (Doc. No. 5) is granted; 14 a. Defendants State of California and California Department of Corrections 15 are dismissed from this action due to plaintiff’s failure to state any 16 cognizable claims against them, with leave to amend; and 17 b. Plaintiff’s third, fifth, and sixth causes of action against defendants 18 Morales and Swanson are dismissed, with leave to amend; and 19 2. Any first amended complaint that plaintiff may elect to file in this action, 20 consistent with the leave to amend granted by the court in this order, shall be filed 21 within twenty-one (21) days after the issuance of this order;2 22 3. In the event no amended complaint is filed, defendants shall file their answer to the 23 remaining causes of action within fourteen (14) days of the date by which any 24 amended complaint had to be filed; and 25 2 If plaintiff elects to file an amended complaint, he is reminded that Local Rule 220 requires that an amended complaint be complete in itself without reference to any prior pleading. This is 26 because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. 27 Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiffs file an amended complaint, the original pleading no longer serves any function in the case. Therefore, in any amended complaint, as in 28 an original complaint, each claim must be sufficiently alleged. 1 4. Because the court has granted plaintiff's request for leave to amend his complaint 2 to allege claims against defendants State of California and CDCR, the court will 3 not direct the Clerk of Court to terminate them as defendants in this action at this 4 time. 5 | IT IS SO ORDERED. a “ 6 Li. wh F Dated: _ June 11, 2021 wea rE 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14