(PC) Bratton v. Castillo ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TORY BRATTON, No. 2:21-CV-0076-KJM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 CASTILLO, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983 and the Americans with Disabilities Act (ADA). Pending before the Court is 19 Defendant Bobbala’s motion to dismiss, ECF No. 27. Plaintiff has filed an opposition in response 20 to Defendant’s motion, ECF No. 29. 21 In considering a motion to dismiss, the Court must accept all allegations of 22 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The 23 Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer 24 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 25 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All 26 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 27 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual 28 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). 1 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. 2 See Haines v. Kerner, 404 U.S. 519, 520 (1972). 3 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 4 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 5 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 6 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 7 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 8 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 9 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 10 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 11 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 12 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 13 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 14 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 15 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 16 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 17 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 18 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials 19 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 20 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1) 21 documents whose contents are alleged in or attached to the complaint and whose authenticity no 22 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 23 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 24 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 25 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 26 1994). 27 / / / 28 / / / 1 Furthermore, leave to amend must be granted “[u]nless it is absolutely clear that 2 no amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) 3 (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 4 Finally, “the Supreme Court has instructed the federal courts to liberally construe the 5 inartful pleading of pro se litigants. It is settled that the allegations of [a pro se litigant’s complaint] 6 however inartfully pleaded are held to less stringent standards than formal pleadings drafted by 7 lawyers.” See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citation and internal quotation 8 marks omitted; brackets in original). The rule, however, “applies only to a plaintiff’s factual 9 allegations.” See Neitzke v.Williams, 490 U.S. 319, 330 n.9 (1989). ‘“[A] liberal interpretation of a 10 civil rights complaint may not supply essential elements of the claim that were not initially pled.”’ 11 See Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of 12 Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 13 14 I. BACKGROUND 15 A. Plaintiff’s Allegations 16 This action proceeds on Plaintiff’s original complaint. Plaintiff names the 17 following as defendants: (1) C. Castillo, a Correctional Officer at California State Prison – 18 Sacramento (CSP-SAC); (2) E. Sanchez, a Correctional Officer at CSP-SAC; (3) G. Black, a 19 Correctional Officer at CSP-SAC; (4) C. Rowland, a Psychiatric Technician at CSP-SAC; (4) C. 20 Staggs-Boatwright (erroneously named in the complaint as Boatwright), a Psychiatric Technician 21 at CSP-SAC; and (5) M. Bobbala, Chief Medical Officer at CSP-SAC. See ECF No. 1, pgs. 2-4. 22 Plaintiff alleges the events outlined in the complaint took place at the California Substance Abuse 23 Treatment Facility in Corcoran, California. See id. at 1. 24 Plaintiff alleges that Defendants Rowland and Staggs-Boatright refused or failed to 25 provide medical aid after Plaintiff had informed them that he had been “vomiting blood” and 26 “vomiting non-stop for several days.” Id. at 5. Plaintiff contends that, as a result of the 27 Defendants’ actions, he suffered a diabetic coma, and was hospitalized at Mercy Hospital of 28 Folsom on February 13, 2020, where he was diagnosed with diabetic ketoacidosis and other 1 medical complications. Id. at 5; see ECF No. 29, pg. 5. Plaintiff claims that his doctor prescribed 2 him a “low carb, high protein diet”.1 Id. at 6. Plaintiff contends that Defendant Bobbala oversees 3 all medical issues at CSP-SAC and denied him his diabetic meals. Id. at 6. 4 Plaintiff’s complaint lays out two claims for relief. Id. at 5-6. Plaintiff claims his 5 diabetic ketoacidosis, which caused him to fall into a diabetic coma and to be hospitalized, was 6 caused by Defendants’ failure to provide or obtain medical aid or assistance, and was a violation 7 of his rights under the Eighth Amendment and the ADA. Id. at 5. In his second claim for relief, 8 Plaintiff alleges that Defendant Bobbala denied his request for diabetic meals as prescribed by his 9 doctor, and thus, violated Plaintiff’s Eighth Amendment rights. Id. at 6. 10 B. Procedural History 11 On June 3, 2021, the Court issued an order finding service of the complaint 12 appropriate and directed e-service on all Defendants. See ECF No. 13. All Defendants provided 13 notice of intent to waive service on July 8, 2022. See ECF No. 17. The wavier of service was 14 executed, and then filed on August 9, 2022. See ECF No. 18. 15 Defendants C. Rowland, G. Black, C. Staggs-Boatright, E. Sanchez, and C. 16 Castillo filed their answer to Plaintiff’s complaint on November 30, 2022. See ECF No. 24. 17 Defendant M. Bobbala filed the instant motion to dismiss on December 5, 2022. 18 19 II. DISCUSSION 20 In her motion to dismiss, Defendant Bobbala argues that each of Plaintiff’s claims 21 for relief against her fails to allege facts upon which relief can be granted. ECF No. 27, pgs. 5-8. 22 A. Failure to State a Claim Under the Eighth Amendment 23 The treatment a prisoner receives in prison and the conditions under which the 24 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 25 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 26 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts of 27 dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 28 1 Hereinafter referred to as “diabetic meals.” 1 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 2 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 3 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 4 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 5 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 6 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 7 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 8 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 9 official must have a “sufficiently culpable mind.” See id. 10 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 11 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; 12 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health 13 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by 14 Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to 15 treat a prisoner’s condition could result in further significant injury or the “. . . unnecessary and 16 wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled 17 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see 18 also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness 19 are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2) 20 whether the condition significantly impacts the prisoner’s daily activities; and (3) whether the 21 condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122, 22 1131-32 (9th Cir. 2000) (en banc). 23 The requirement of deliberate indifference is less stringent in medical needs cases 24 than in other Eighth Amendment contexts because the responsibility to provide inmates with 25 medical care does not generally conflict with competing penological concerns. See McGuckin, 26 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 27 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 28 1989). The complete denial of medical attention may constitute deliberate indifference. See 1 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 2 treatment, or interference with medical treatment, may also constitute deliberate indifference. See 3 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate 4 that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 5 Negligence in diagnosing or treating a medical condition does not, however, give 6 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 7 difference of opinion between the prisoner and medical providers concerning the appropriate 8 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 9 90 F.3d 330, 332 (9th Cir. 1996). 10 Plaintiff’s claim has two components: Defendant’s failure to provide him with 11 diabetic meals, and the alleged harm suffered from Defendant’s failure to provide or obtain 12 medical aid when Plaintiff complained of illness. See ECF No. 1, pgs. 5-6. 13 1. Diabetic Meals 14 Defendant’s motion to dismiss makes several arguments to support the dismissal 15 of Plaintiff’s claim related to diabetic meals. Specifically, Defendant’s motion to dismiss states: 16 Plaintiff’s claims against Dr. Bobbala in relation to the plaintiff’s “diabetic meals” are entirely based on Dr. Bobbala’s supervisory role and 17 are vague and conclusory. Plaintiff does not allege that Dr. Bobbala was personally involved in the provision of food to plaintiff and that she 18 refused to provide food consistent with Plaintiff’s medically prescribed diet. The entire cause of action is based solely on Dr. Bobbala’s 19 supervisory position: plaintiff alleges that she was a chief medical executive “who oversee all medical issues.” (ECF No. 1, p. 6.) Thus, 20 plaintiff has failed to state a plausible claim for deliberate indifference against Dr. Bobbala. See also, (Crowley v. Bannister, 734 F.3d 967, 977 21 (9th Cir. 2013); Woodward v. Kokor, No. 1:17-cv-00722-BAM (PC), 2017 U.S. Dist. LEXIS 91777, at *9 (E.D. Cal. June 13, 2017), [“to the extent 22 Plaintiff seeks to bring suit against the Chief Medical Officer and the Chief Medical Executive … based on their roles as supervisors, he may 23 not do so. Supervisory personnel may not be held liable under section 1983 for the actions of subordinate employees based on respondeat 24 superior or vicarious liability.”] citing to Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013); accord Lemire v. Cal. Dep't of Corr. & Rehab., 25 726 F.3d 1062, 1074-75 (9th Cir. 2013).) Furthermore, “vague and conclusory allegations of official 26 participation in civil rights violations are not sufficient to withstand a motion to dismiss.” (Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 27 1982).) (see also Hydrick v. Hunter, 669 F.3d 937, 941 (9th Cir. 2012).) Thus the vague and conclusory allegation that Dr. Bobbala oversees all 28 medical issues and denied plaintiff his diabetic meals does not plead 1 sufficient facts to state a cause of action for deliberate indifference. (See Wilkes v. Nepomuceno, No. CIV S-10-2706 DAD P, 2011 U.S. Dist. 2 LEXIS 130611, at *10-11 (E.D. Cal. Nov. 9, 2011), [ finding that “vague and conclusory allegations” that that all defendants reported to the Chief 3 Medical Officer defendant and thus he “‘knew of my injury, [and] knew it was a serious injury that required prompt and adequate medical attention’ 4 but chose a conservative approach to treat plaintiff's injury” are insufficient to support a § 1983 action against the Chief Medical Officer 5 defendant.]; Wicklund v. Queen of the Valley Med. Ctr., No. 2: 10-cv 2161 KJN P, 2010 U.S. Dist. LEXIS 134253, at *7 (E.D. Cal. Dec. 8, 2010, 6 [“Plaintiff's claim that defendant Traquina is liable for the allegedly inadequate medical care simply based on his position as the Chief Medical 7 Officer is not colorable, as it is based on the theory of respondeat superior.”]) 8 Moreover, to the extent plaintiff relies on any response by Dr. Bobbala to a health care grievance submitted by him, Plaintiff likewise 9 fails to state a cognizable claim against Dr. Bobbala. Plaintiff cannot hold Dr. Bobbala liable based solely on a contention that the appeals process 10 was deficient or he was denied a particular result. (Allen v. Lopez, No. 1:19-cv-00154-BAM (PC), 2019 U.S. Dist. LEXIS 59377, at *9 (E.D. Cal. 11 Apr. 5, 2019), [“[t]the existence of an inmate appeals process does not create a protected liberty interest upon which Plaintiff may base a claim 12 that he was denied a particular result or that the appeals process was deficient.”] citing to Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 13 and Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988).) Allegations concerning a medical officer’s administrative actions in “reviewing and/or 14 denying grievance do not typically state a claim of deliberate indifference. (See Holt v. Finander (C.D.Cal. Aug. 4, 2016, No. CV 15-5089-JVS 15 (KLS)) 2016 U.S.Dist.LEXIS 144311, at *50; Arellano v. Sedighi, No. 15- cv-02059-AJB-BGS, 2018 U.S. Dist. LEXIS 32956, at *22 (S.D. Cal. Feb. 16 27, 2018, [“Plaintiff's allegations stem only from defendants [] administrative oversight of the grievance process; without more, such 17 claims are not cognizable under section 1983.”]) Finally, Plaintiff has failed to plead any fact to plausibly state that 18 Dr. Bobbala acted with the requisite culpable state of mind. (See Wilson v. Seiter, 501 U.S. 294, 297 (1991). There are no facts alleged, rather than 19 mere bald and conclusory statements, that Dr. Bobbala was subjectively aware of the existence of a substantial risk of serious harm to Plaintiff’s 20 health and that she disregarded that risk or that she had knowledge of and acquiesced in an unconstitutional conduct. (See, e.g., Colwell v. Bannister, 21 763 F.3d 1060, 1066 (9th Cir. 2014). 22 ECF No. 27, pgs. 7-8. 23 i. Supervisory Liability 24 Supervisory personnel are generally not liable under § 1983 for the actions of their 25 employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no 26 respondeat superior liability under § 1983). A supervisor is only liable for the constitutional 27 violations of subordinates if the supervisor participated in or directed the violations. See id. The 28 Supreme Court has rejected the notion that a supervisory defendant can be liable based on 1 knowledge and acquiescence in a subordinate’s unconstitutional conduct because government 2 officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct 3 and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory 4 personnel who implement a policy so deficient that the policy itself is a repudiation of 5 constitutional rights and the moving force behind a constitutional violation may, however, be 6 liable even where such personnel do not overtly participate in the offensive act. See Redman v. 7 Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). 8 When a defendant holds a supervisory position, the causal link between such 9 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 10 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 11 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in 12 civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th 13 Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the 14 official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676. 15 The Court disagrees that Plaintiff’s claim is only based on Defendant’s supervisory 16 role. Plaintiff’s claim states “Defendant Bobbala . . . denied me my diabetic meals, that where 17 [sic] prescribe [sic] to help manage my diabetes.” ECF No. 1, pg. 6. While Plaintiff’s claim also 18 includes his interpretation of Defendant’s role at CSP-SAC, he specifically alleges Defendant’s 19 role in failing to provide Plaintiff diabetic meals and does not merely allege respondeat superior. 20 Id. Since Defendant’s claim is plausible on its face, the motion to dismiss should not be sustained 21 on these grounds. See id.; Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley 22 v. Gibson, 355 U.S. 41, 47 (1957). 23 ii. Appeals Process 24 Furthermore, Plaintiff does not base his claim on the results of an appeals process 25 nor the deficiency of said process. See ECF No. 1, pg. 6. Plaintiff’s claim regards the denial of 26 an allegedly prescribed diet by Defendant Bobbala, which, in light of Plaintiff’s diabetes, may 27 constitute deliberate indifference. Id.; see also Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th 28 Cir. 1986). 1 iii. Failure to State a Claim 2 However, the Court also finds that Plaintiff’s claim related to diabetic meals fails 3 to allege sufficient facts to show that Defendant’s actions were taken “unnecessarily and 4 wantonly for the purpose of inflicting harm.” See Farmer v. Brennan, 511 U.S. 825, 834 (1994). 5 Thus, Plaintiff’s claim fails to allege facts sufficient to indicate Defendant’s culpable state of 6 mind. See id. On these grounds, the Court agrees that Defendant’s motion to dismiss should be 7 granted. The Court will, however, also recommend that Plaintiff be provided an opportunity to 8 amend. 9 2. Vomiting 10 The Court agrees with Defendant that Plaintiff fails to state a claim against 11 Defendant Bobbala arising from the failure to provide or obtain medical assistance for his 12 vomiting, because Defendant Bobbala is not referenced in this part of Plaintiff’s claim. 13 To state a claim under 42 U.S.C. § 1983, the plaintiff must allege an actual 14 connection or link between the actions of the named defendants and the alleged deprivations. See 15 Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A 16 person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of 17 § 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform 18 an act which he is legally required to do that causes the deprivation of which complaint is made.” 19 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory allegations 20 concerning the involvement of official personnel in civil rights violations are not sufficient. See 21 Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Rather, the plaintiff must set forth 22 specific facts as to each individual defendant’s causal role in the alleged constitutional 23 deprivation. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 24 Here, Plaintiff fails to allege Defendant Bobbala’s connection or link to Plaintiff’s 25 claim related to vomiting. See ECF No. 1, pg. 5. In fact, Defendant Bobbala is never mentioned 26 with respect to this claim. As such, Plaintiff’s claim related to vomiting, as against Defendant 27 Bobbala, cannot be sustained. Because it is possible that Plaintiff may be able to allege facts 28 showing Defendant Bobbala’s participation with respect to this claim, the Court will recommend 1 that Plaintiff be provided an opportunity to amend. 2 B. Failure to State a Claim Under the ADA 3 Defendant argues that Plaintiff fails to state a claim for relief under the ADA. The 4 Court agrees. 5 The general rule of the ADA holds that “[n]o individual shall be discriminated 6 against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, 7 privileges, advantages, or accommodations of any place of public accommodation by any person 8 who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C § 9 12182. The Supreme Court has held that the ADA applies to prisoners in state correctional 10 facilities. See Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 213 (1998). The statute 11 defines “disability,” in pertinent part, as “a physical or mental impairment that substantially limits 12 one or more of the major life activities of such individual.” 42 U.S.C. § 12102(1)(A). Diabetes is 13 a “physical impairment” because it affects the digestive, hemic, and endocrine systems, and 14 eating is a “major life activity.” Rohr v. Salt River Project Agric. Imp. & Power Dist., 555 F.3d 15 850, 858 (9th Cir. 2009) (quoting Fraser v. Goodale, 342 F.3d 1032, 1038–40 (9th Cir.2003). 16 Here, Plaintiff has not pleaded any facts to demonstrate Defendant Bobbala 17 violated the ADA. The gravamen of Plaintiff’s complaint is the assertion that defendants were 18 deliberately indifferent to his vomiting and diabetic meal needs, in violation of the Eighth 19 Amendment. Plaintiff references the ADA in the caption of his first claim for relief. ( See ECF 20 No. 1, pg. 5), but does not allege anywhere in the complaint that he was treated differently or not 21 provided an accommodation because he is disabled. To the extent Plaintiff asserts a claim under 22 the ADA, such claim should be dismissed with prejudice. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 /// 2 Il. CONCLUSION 3 Based on the foregoing, the undersigned recommends as follows: 4 1. Defendant Bobbala’s motion to dismiss, ECF No. 27, be GRANTED. 5 2. To the extent Plaintiff intends a claim under the ADA, such claim be 6 dismissed with prejudice for failure to state a claim. 7 3. This action proceed solely on Plaintiff's Eighth Amendment claims. 8 4. Plaintiff be provided an opportunity to amend to state claims against 9 Defendant Bobbala or proceed on the original complaint as against the answering defendants 10 (Black, Rowland, Staggs-Boaright, Sanchez, and Castillo) only. 1] These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 13 after being served with these findings and recommendations, any party may file written objections 14 with the Court. Responses to objections shall be filed within 14 days after service of objections. 15 Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 16 Yist, 951 F.2d 1153 (9th Cir. 1991). 17 18 Dated: June 12, 2023 Co 19 DENNIS M. COTA 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 1]