(PC) Kose v. Siez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WANI J. KOSE, Case No.: 1:23-cv-00557-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS 13 v. 14-DAY OBJECTION PERIOD 14 H. SIEZ, et al., 15 Defendants. Clerk of the Court to Assign District Judge 16 17 Plaintiff Wani J. Kose is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 I. SCREENING REQUIREMENT 20 The Court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 22 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 23 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 24 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 25 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 26 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 27 // // 1 II. PLEADING REQUIREMENTS 2 A. Federal Rule of Civil Procedure 8(a) 3 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 4 exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain 5 “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. 6 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 7 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 8 quotation marks & citation omitted). 9 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 10 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 11 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 12 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 13 Id. (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as true, but legal 14 conclusions are not. Id. (citing Twombly, 550 U.S. at 555). 15 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 16 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 17 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal 18 theories. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation 19 of a civil rights complaint may not supply essential elements of the claim that were not initially 20 pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal 21 quotation marks & citation omitted), and courts “are not required to indulge unwarranted 22 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 23 marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 24 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 25 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted). 26 B. Linkage and Causation 27 Section 1983 provides a cause of action for the violation of constitutional or other federal 1 section 1983, a plaintiff must show a causal connection or link between the actions of the 2 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 3 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 4 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 5 act, participates in another’s affirmative acts, or omits to perform an act which he is legal required 6 to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 7 743 (9th Cir. 1978) (citation omitted). 8 III. DISCUSSION 9 A. Plaintiff’s Complaint 10 Plaintiff’s complaint names Correctional Officer H. Siez, and Registered Nurses Negre 11 Analyn1 and Melisa Walker, all employed at North Kern State Prison, as Defendants. (Doc. 1 at 12 1-2.) Plaintiff sues Defendants in their individual and official capacities. (See Doc. 1 at 23 13 [handwritten page with “’1-A’” entered at the bottom].) By way of relief, Plaintiff seeks a 14 declaratory judgment, compensatory and punitive damages, and any other relief the Court deems 15 proper. (Id. at 22.) 16 Because Plaintiff’s complaint provides supporting factual allegations as to each claim 17 asserted, the factual allegations will be addressed separately in the same manner. 18 B. Plaintiff’s Claims 19 Claim I: Eighth Amendment Threat to Safety 20 Factual Allegations 21 Plaintiff contends that on July 14, 2020, he was “monitored at TTA”2 after being found 22 unconscious in his cell. (Doc. 1 at 3.) Plaintiff states he was taken to TTA “with no shoes on.” 23 (Id.) Defendant H. Siez was the medical transport officer on the morning shift and noticed 24 Plaintiff’s “condition was not well” and inquired of Plaintiff whether he was able to walk. (Id.) 25 26 1 Plaintiff’s complaint alternates between identifying this defendant by her first name and her last name. For the sake of continuity, the Court will refer to Defendant Negre Analyn by her surname. 27 2 According to the California Department of Corrections and Rehabilitation, “TTA” is a Triage and Treatment Area. See https://www.cdcr.ca.gov (last visited June 27, 2023). 1 Plaintiff advised Siez he did not wish to walk because he “was still dizzy and [had] bare feet.” 2 (Id.) Plaintiff contends he had to walk after “attempting to get a wheelchair from RN Negre 3 Analyn and RN Melisa Walker.” (Id.) Plaintiff contends it was “torture stepping on rocks and 4 gravel [stabbing his] feet.” (Id.) Siez noticed Plaintiff stumbling and stated, “Now that’s messed 5 up how the nurses were acting.” (Id.) Plaintiff contends Siez told him he “should write it up” and 6 that Plaintiff “looked just like” Siez’s son. (Id.) Plaintiff contends Siez advised him “that 7 watching how the nurses didn’t want to help made him think about what if [Plaintiff] was his 8 son.” (Id.) 9 Plaintiff asserts Siez decided to use a golf cart to prevent Plaintiff from suffering further. 10 (Doc. 1 at 4.) The golf cart was “a cart that was a two seater with a mini truck like flat bed in the 11 back.” (Id.) Plaintiff asserts there “was no way to transform that flat bed into a seat,” that there 12 were no rails or seat belts, and that his feet touched the ground while sitting on the low cart. (Id.) 13 As Plaintiff sat back on the cart far enough to rest his feet on the ground because standing and 14 walking had made him drowsy, Siez “[fiddled] with the trash on the seats.” (Id.) Plaintiff 15 contends that after moving trash from the driver’s seat to the passenger’s seat, Siez reversed the 16 cart without any warning. (Id.) Plaintiff did not hear “an engine come on.” (Id.) Plaintiff states 17 Siez “never even told [him] we were traveling in this cart otherwise [Plaintiff] would have asked 18 to sit some place safe.” (Id.) He asserts as the cart reversed, it changed direction quickly and 19 jerked his body. (Id.) Plaintiff contends as the cart “went quickly forward from reverse,” it tossed 20 Plaintiff off the flat bed. (Id.) Plaintiff fell off the back of the cart but prevented his head from 21 slamming into the concrete. (Id. at 5.) Plaintiff used his left hand to brace his fall; he contends his 22 “shoulder made a sound that was like rubbing rocks make and pain shot up” his left shoulder. 23 (Id.) He contends his shoulder popped “in and out leaving [him] injured.” (Id.) 24 Plaintiff states he could not move his shoulder without serious pain. (Doc. 1 at 5.) Plaintiff 25 contends Defendant Analyn “kept being ruff” after Siez returned Plaintiff to TTA. (Id.) Analyn 26 stated to Plaintiff “‘Your [sic] back that fast.’” (Id.) Plaintiff “told her to stop trying to move [his] 27 shoulder because it hurts everytime she does.” (Id.) Plaintiff contends Analyn refused his request 1 “this time” and escorted Plaintiff. (Id.) Plaintiff contends as they were heading to A yard, Siez 2 told Plaintiff “about how the nurses were not being fair and how the treatment was not usual 3 never has he seen someone get denied a wheelchair when being barefeet and dizzy.” (Id.) Plaintiff 4 asserts Siez told Plaintiff he was trying to help because he saw Plaintiff suffering while walking. 5 (Id.) Plaintiff states he is “not saying H. Siez had an intent to hurt [him] but he knew that cart 6 would not be safe and [Plaintiff is] sure he thought about putting [Plaintiff] in the front seat.” (Id. 7 at 6.) Plaintiff contends Siez “acted with the understanding that it was a dangerous situation.” 8 (Id.) Analyn and Walker made “it hard on” Siez because they did not do “their job in a reasonable 9 manner, but Siez knew better.” (Id.) Siez knew Plaintiff was dizzy and failed in his obligation to 10 take reasonable measures to guarantee Plaintiff’s safety. (Id.) Plaintiff contends a reasonable 11 person would know it was not safe to put a sick person on the flat bed of a moving cart without 12 seat belts or railings. (Id.) Plaintiff further contends Siez “did things the easy way,” rather than 13 clearing a place for Plaintiff in the seat at the front of the cart. (Id.) Plaintiff asserts Siez could 14 also have “gotten a real medical cart” as an alternative. (Id.) Plaintiff suffered injuries that 15 continue to cause him pain and suffering. (Id.) 16 Applicable Legal Standards & Analysis 17 The Eighth Amendment protects prisoners from inhumane methods of punishment and 18 from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 19 2006). The unnecessary and wanton infliction of pain violates the Cruel and Unusual 20 Punishments Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992) 21 (citations omitted). Although prison conditions may be restrictive and harsh, prison officials must 22 provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. 23 Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) (quotations omitted). 24 Prison officials have a duty “to take reasonable measures to guarantee the safety of 25 inmates, which has been interpreted to include a duty to protect prisoners.” Labatad v. 26 Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Farmer, 511 U.S. at 27 832-33 & Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005)). To establish a violation of 1 serious harm or injury to an inmate.” Id. (citing Gibson v. County of Washoe, 290 F.3d 1175, 2 1187 (9th Cir. 2002)). 3 A failure to protect claim under the Eighth Amendment requires a showing that “the 4 official [knew] of and disregard[ed] an excessive risk to inmate ... safety.” Farmer, 511 U.S. at 5 837. “Whether a prison official had the requisite knowledge of a substantial risk is a question of 6 fact subject to demonstration in the usual ways, including inference from circumstantial evidence, 7 ... and a factfinder may conclude that a prison official knew of a substantial risk from the very 8 fact that the risk was obvious.” Id. at 842 (citations omitted). The duty to protect a prisoner from 9 serious harm requires that prison officials take reasonable measures to guarantee the safety and 10 well-being of the prisoner. Id. at 832-33; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). As 11 “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment,” plaintiff 12 must allege facts showing the defendant acted with a “sufficiently culpable state of mind.” Wilson 13 v. Seiter, 501 U.S. 294, 297 (1991) (internal quotations marks, emphasis, & citations omitted). 14 Liberally construing the complaint, Plaintiff has plausibly alleged an Eighth Amendment 15 threat to safety/failure to protect claim against Defendant Siez. Plaintiff has sufficiently alleged 16 Siez knew of and disregarded a substantial risk of harm to Plaintiff when Siez opted to transport 17 Plaintiff while sitting in the flatbed of a cart, when a passenger seat reasonably was available, in 18 the absence of safety restraints and operating the cart in such a manner, knowing Plaintiff was 19 dizzy and unwell following an earlier episode of unconsciousness, causing Plaintiff to fall from 20 the moving cart and suffer serious injuries. 21 Notably however, Plaintiff may not pursue his claims for monetary damages against 22 Defendant Siez in his official capacity. “The Eleventh Amendment bars suits for money damages 23 in federal court against a state, its agencies, and state officials in their official capacities.” 24 Aholelei v. Dep’t. of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations omitted). 25 However, the Eleventh Amendment does not bar suits seeking damages against state officials in 26 their personal capacities. Hafer v. Melo, 502 U.S. 21, 30 (1991); Porter v. Jones, 319 F.3d 483, 27 491 (9th Cir. 2003). Nor does it bar suits for injunctive relief brought against state officials in 1 Thus, Plaintiff may only proceed in this action for monetary damages against Defendant Siez in 2 his individual capacity. Claims II & III: Eighth Amendment Deliberate Indifference to Serious 3 Medical Needs 4 Factual Allegations3 5 Plaintiff asserts that on July 19, 2020, after being found unconscious in his cell and 6 transported to medical. (Doc. 1 at 8.) He was not wearing shoes. (Id.) After regaining “some 7 consciousness,” he was placed in a wheelchair and transported to TTA for monitoring by 8 Defendants Analyn and Walker. (Id.) He advised Analyn and Walker that he had been drugged by 9 an inmate and couldn’t remember much of what had occurred. (Id.) Analyn stated to Plaintiff, 10 “You probably smoked something.” (Id.) Plaintiff told Analyn he did not smoke and that 11 “[indecipherable] put something in” his drink. (Id.) Plaintiff states he felt like his life was in 12 danger and he did not know why someone would drug him. (Id.) Plaintiff believes it was an 13 attempt on his life and contends his “body was presenting signs that [he] was raped.” (Id.) He 14 contends neither Analyn nor Walker cared he had been raped or why he had been drugged; both 15 ignored it and “never even had [his] blood tested.” (Id.) 16 Plaintiff contends Defendant Analyn was “very upset” Plaintiff was “brought back to TTA 17 on a Saturday,” stating he could have been monitored on A-yard and that Plaintiff was “just going 18 to go back and smoke that shit and come back.” (Doc. 1 at 9.) Plaintiff asserts “there was nothing 19 that said” he had smoked anything; he was distressed by Analyn’s comments because he was in 20 “a real crisis!! Medical Emergency!” (Id.) Plaintiff contends he was drugged, does not remember 21 much of anything and his body felt as if he was raped. (Id.) He asserts Analyn was 22 unprofessional. (Id.) After 30 to 45 minutes he was discharged by Analyn and Walker before he 23 felt well. (Id.) Walker told him he would be fine if he just rested. (Id.) He told Walker he had no 24 problem going back to his cell, but that he was still feeling dizzy. (Id.) Plaintiff asserts he told 25 both Analyn and Walker he was “still feeling sick and unstable, because they were rushing [him] 26 out of the clinic and he was dizzy and bare feet.” (Id.) Analyn and Walker were aware Plaintiff 27 3 The factual allegations for Claims II and III are the same. (Doc. 1 at 8-14 to Doc. 1 at 15-21.) The Court presumes Plaintiff intended one claim against Defendant Analyn and another against Defendant Walker. 1 did not have shoes and that he was not well enough to walk a half mile in bare feet while dizzy. 2 (Id.) Plaintiff contends it was “a form of torture to force someone to walk ½ mile bare feet a [sic] 3 dizzy, it safe to say the intent seem clear.” (Id.) 4 Further, Plaintiff states that after he tried to explain to Analyn and Walker why he needed 5 a wheelchair, both “failed to understand the basic humanistic values when looking down and 6 noticing my barefeet and thinking about my condition being dizzy still.” (Doc. 1 at 10.) Plaintiff 7 contends Walker walked away from him as he “begged for her help and compassion.” (Id.) After 8 a final plea to Analyn, she stated “I told you its my ‘chill Saturday,’” then Analyn said 9 “something about a work feud they have with the A-yard medical because they never bring back 10 the wheel chairs when an inmate is sent with one.” (Id.) Analyn stated it was too far to be walking 11 to A-yard to pick up a wheelchair. (Id.) Plaintiff contends he tried to speak with Defendant Siez 12 about it, but Siez told him to “write it up as a complaint.” (Id.) Plaintiff asserts he told Analyn he 13 would be writing both Analyn and Walker up; Analyn showed Plaintiff her name tag and stated, 14 “Don’t spell my name wrong.” (Id.) As Plaintiff walked out, Siez made comments about 15 Plaintiff’s medical treatment and resemblance to his own son “dark skin and hair stile [sic] (dread 16 locks).” (Id.) Plaintiff contends he suffered while walking on gravel and small rocks, was 17 “walking like a drunk,” and was drowsy. (Id. at 10-11.) Plaintiff states he later injured his 18 shoulder and back “not even 50 ft from TTA,” referring to the cart incident. (Id. at 11.) Plaintiff 19 contends his injuries are attributable to Analyn and Walker for refusing to assist him. (Id.) He 20 contends after his fall they “magicly went to find a wheel chair to make sure” he was safe. (Id.) 21 Further, Plaintiff contends Analyn and Walker ignored his condition the first time they refused 22 him a wheelchair and failed to send him to x-ray after he fell injuring his shoulder. (Id.) They also 23 failed to provide him with a sling, downplayed his pain level and his injury and “barely even” 24 checked him properly. (Id.) Analyn stated Plaintiff was exaggerating the pain level, telling 25 Plaintiff she saw him catch himself and that it could have been worse. (Id.) 26 Plaintiff contends Analyn and Walker were deliberately indifferent despite knowing he 27 was dizzy and in bare feet. (Doc. 1 at 12.) He further contends Analyn and Walker “acted with a 1 contends his back still bothers him and his shoulder “still pops out if” he moves wrong in his 2 sleep. (Id.) He contends the risk of harm was obvious and both Analyn and Walker subjected him 3 to a substantial risk of physical harm “by giving [him] less then the dignity of men.” (Id.) Plaintiff 4 asserts “no one took [his] pain serious” and he developed “extra suffering with frozen shoulder,” 5 having to keep his arm steady to avoid pain. (Id.) Plaintiff contends Analyn and Walker “never 6 took the obligation they had to take reasonable measures to guarantee” his safety, he was not 7 treated “with the Eighth Amendment in [] mind,” and that both defendants “did what was easy 8 instead of what was reasonable.” (Id. at 13) He states if Analyn and Walker would have provided 9 a wheelchair in the first instance he would have avoided the subsequent injury. (Id.) He repeats 10 his assertions he was ignored, and that Defendants did not care because it was Saturday. (Id.) 11 Applicable Legal Standards & Analysis 12 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 13 prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 14 is serious if failure to treat it will result in ‘“significant injury or the unnecessary and wanton 15 infliction of pain.”’” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (9th Cir. 2014) (quoting Jett v. 16 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 17 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 18 Cir. 1997) (en banc)). 19 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 20 first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition 21 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 22 the plaintiff must show the defendants’ response to the need was deliberately indifferent.” 23 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 24 (quotation marks omitted)). 25 As to the first prong, indications of a serious medical need “include the existence of an 26 injury that a reasonable doctor or patient would find important and worthy of comment or 27 treatment; the presence of a medical condition that significantly affects an individual’s daily 1 1066 (9th Cir. 2014) (citation & internal quotation marks omitted); accord Wilhelm, 680 F.3d at 2 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (“Examples of serious medical needs 3 include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and 4 worthy of comment or treatment; the presence of a medical condition that significantly affects an 5 individual’s daily activities; or the existence of chronic and substantial pain”). 6 As to the second prong, deliberate indifference is “a state of mind more blameworthy than 7 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 8 safety.’” Farmer, 511 U.S. at 835 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). 9 Deliberate indifference is shown where a prison official “knows that inmates face a substantial 10 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 11 Id. at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a 12 prisoner’s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 13 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was 14 substantial; however, such would provide additional support for the inmate’s claim that the 15 defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974 16 F.2d at 1060. 17 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 18 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the facts from 19 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 20 ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison 21 official should have been aware of the risk, but was not, then the official has not violated the 22 Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, 23 Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 24 To prevail on a deliberate-indifference claim, a plaintiff must also show that harm resulted 25 from a defendant’s wrongful conduct. Wilhelm, 680 F.3d at 1122; see also Jett, 439 F.3d at 1096; 26 Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (prisoner alleging deliberate indifference 27 based on delay in treatment must show delay led to further injury). 1 indifference to serious medical needs claims against Defendants Analyn and Walker. This is so 2 because Plaintiff has asserted a serious medical need—being found unconscious in his cell, 3 reporting being drugged and raped and continuing to feel dizzy and suffering a later fall that 4 injured his back and shoulder—thus meeting the first prong of the deliberate indifference test. 5 Further, Plaintiff has sufficiently alleged a failure to respond by Analyn and Walker where both 6 were aware Plaintiff had been found unconscious in his cell and was to be monitored, that 7 Plaintiff alleged he had been drugged and raped, and continued to feel dizzy and unwell, and that 8 after a subsequent fall, Plaintiff reported pain in his left shoulder. He also asserts he was denied a 9 wheelchair, a sling, and an x-ray. Further, Plaintiff has also sufficiently alleged harm by 10 contending he suffers from chronic back pain, a loss of range of motion, a shoulder injury that 11 continues to cause pain and suffering, and an inability to perform daily activities. These alleged 12 facts meet the second prong of the deliberate indifference test. 13 Nevertheless, as explained above concerning the claim against Defendant Siez, Plaintiff 14 may not pursue his claims for monetary damages against Defendants Analyn and Walker in their 15 official capacities. Aholelei, 488 F.3d at 1147. Plaintiff may only proceed in this action for 16 monetary damages against Defendants Analyn and Walker in their individual capacities. Hafer, 17 502 U.S. at 30; Porter, 319 F.3d at 491. 18 IV. CONCLUSION AND RECOMMENDATIONS 19 The Clerk of the Court is DIRECTED to randomly assign a district judge to this action. 20 Further, and for the reasons given above, the Court finds Plaintiff has stated a cognizable 21 Eighth Amendment failure to protect claim against Defendant Siez and cognizable Eighth 22 Amendment deliberate indifference to serious medical needs claims against Defendants Analyn 23 and Walker, in their individual capacities. Therefore, the Court hereby RECOMMENDS that: 24 1. This action PROCEED on Plaintiff’s Eighth Amendment failure to protect claim 25 against Defendant Siez, and his deliberate indifference to serious medical needs claims 26 against Defendants Analyn and Walker, in their individual capacities only; and 27 2. Plaintiff’s claims against Defendants Siez, Analyn and Walker, in their official 1 | These Findings and Recommendations will be submitted to the district judge assigned to this 2 || case, pursuant to 28 U.S.C. § 636(b)(). Within 14 days of the date of service of these Findings 3 | and Recommendations, a party may file written objections with the Court. The document should 4 | be captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file 5 | objections within the specified time may result in waiver of rights on appeal. Wilkerson v. 6 | Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 7 | Cir. 1991)). 8 | IT IS SO ORDERED. Dated: _ June 27, 2023 | hr 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12