(PC) Mundy v. Cavello

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 STANLEY W. MUNDY, No. 2:23-cv-0061 WBS AC P 12 Plaintiff, 13 v. ORDER 14 PATRICK CAVELLO, et al., 15 Defendants. [16] 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 . 19 I. Procedural History 20 By order filed January 11, 2023, plaintiff’s first amended complaint filed in Mundy v. 21 Sacramento County Jail Medical Staff, No. 1:22-cv-0401 ADA SAB (E.D. Cal.), was severed into 22 three separate civil actions. ECF No. 2. This case, which relates only to the allegations against 23 defendants at Mule Creek State Prison, was transferred to this division and opened on the same 24 day. Id. Plaintiff was then ordered to file an amended complaint that raised only his claims 25 against the defendants at Mule Creek State Prison. ECF No. 9. Plaintiff has now filed an 26 amended complaint. ECF No. 11. 27 //// 28 //// 1 II. First Amended Complaint 2 A. Statutory Screening of Prisoner Complaints 3 The court is required to screen complaints brought by prisoners seeking relief against “a 4 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). 5 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 6 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 7 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 8 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 9 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 10 Cir. 1984). “[A] judge may dismiss . . . claims which are ‘based on indisputably meritless legal 11 theories’ or whose ‘factual contentions are clearly baseless.’” Jackson v. Arizona, 885 F.2d 639 , 12 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327 ), superseded by statute on other grounds as 13 stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The critical inquiry is whether a 14 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. 15 Franklin, 745 F.2d at 1227-28 (citations omitted). 16 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 17 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 18 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 19 U.S. 544 , 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 20 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 21 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, [22] 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 23 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 24 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 25 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “[T]he pleading must contain 26 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 27 cognizable right of action.” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 28 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 1 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 2 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 3 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 4 content that allows the court to draw the reasonable inference that the defendant is liable for the 5 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 6 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 7 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 8 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 9 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 10 B. Plaintiff’s Allegations 11 The first amended complaint is comprised of three separate claims and alleges that 12 individual defendants Covello, Macomber, Davidson, Stacy, Costa, Hla, Hernandez, Gaynor, 13 Ullery, Cribari, Miranda, and Gates, as well as entity defendants Mule Creek State Prison 14 (MCSP), California Department of Corrections and Rehabilitation (CDCR), California Prison 15 Industry (CALPIA), and California Correctional Health Care Services (CCHCS), violated 16 plaintiff’s rights under the Eighth and Fourteenth Amendments and the ADA. ECF No. 11. 17 In Claim One, plaintiff alleges that he suffers from a soy allergy and that all defendants 18 implemented customs and policies that violated medical ethics, CDCR and CCHCS policy, the 19 ADA, and federal food safety laws and repeatedly denied him a prescribed non-soy, cardiac diet. 20 Id. at 5-6. He has suffered from allergy symptoms on hundreds of occasions, which defendants 21 have witnessed, and he submitted multiple grievances at all levels which defendants have denied. 22 Id. at 6-7. With respect to specific defendants, plaintiff alleges that Stacy refused to provide him 23 copies of medical records he needed to substantiate his food allergies. Id. at 5-6. After plaintiff 24 suffered an allergy attack, Hla and Hernandez refused to provide him treatment and put in a 25 routine priority request to see Gaynor, a dietician. Id. at 6. Hla, Hernandez, and Gaynor have all 26 acknowledged plaintiff’s allergy but refused to provide proper care or a proper diet and tell him to 27 just avoid foods with soy, while Hla and Hernandez routinely refuse to document plaintiff’s 28 allergic reactions. Id. 6-7. Plaintiff is unable to avoid foods with soy because CDCR, CCHCS, 1 and CALPIA do not provide ingredient or food allergy labels for cooked and most packaged 2 foods. Id. at 7. 3 Claim Two asserts that plaintiff suffers from three serious, life-threatening conditions and 4 that all defendants—except Gaynor, Davidson, and CALPIA—implemented customs and policies 5 that violated medical ethics, CDCR and CCHCS policy, and federal laws, and that they have 6 denied or delayed treatment for his conditions. Id. at 9. With respect to his first condition, 7 plaintiff states that he suffers from severe gastrointestinal bleeding caused by his soy allergy and 8 that Hla, Hernandez, Ullery, and Gates have refused to send him for a diagnostic scope and other 9 treatment that was prescribed by a specialist. Id. at 9-10. Plaintiff’s second condition is ongoing 10 blood infections and damage to his leg from repeated hives. Id. at 10. Hla and Hernandez were 11 regularly made aware of plaintiff’s condition, but they failed to provide treatment that had already 12 been proscribed and Hernandez ordered nurses and officers who tried to help plaintiff not to 13 document his injury. Id. at 11. An MRI showed that plaintiff had two tears in his meniscus and a 14 foreign body in his knee, as well as significant cartilage build up and tissue damage. Id. 15 Plaintiff’s surgery was repeatedly delayed, in part due to Hla and Hernandez refusing to send over 16 the MRI films, and after plaintiff eventually underwent surgery, he was never sent back for 17 follow-up treatment. Id. at 11-12. During the time before the surgery, Hla refused to provide the 18 pain medication. Id. at 12. Finally, plaintiff asserts that he was denied cardiac treatment, which 19 included various diagnostic tests to check the condition of his heart and cardiovascular system 20 after suffering from prolonged infection. Id. at 13. He repeatedly notified Hla, Hernandez, 21 Ullery, and Gates about the tests that had been ordered and his worsening symptoms. Id. 22 Plaintiff also notified “defendants at all levels” that he had been prescribed a cardiac diet and that 23 CDCR’s diet was not sufficient, but he was still denied care. Id. Plaintiff was eventually seen by 24 another provider while Hla and Hernandez were on vacation, and he finally began to receive the 25 treatment that had been ordered by the cardiologist. Id. He asserts that it is CDCR and CCHCS 26 custom to protect all medical providers even when they violate policy and that due to defendants’ 27 policies, he still has not received the correct diet or received appropriate care. Id. at 13-14. 28 //// 1 In his last claim, plaintiff asserts that all defendants—except for Gaynor, Davidson, Hla, 2 Hernandez, and CALPIA—implemented customs and policies that violated his rights under the 3 ADA, and denied him a fair hearing on adverse decisions, representation at hearings, and 4 meaningful access to the grievance system and courts. Id. at 15. Plaintiff states that he has 5 dyslexia, suffers from a brain injury, has been declared disabled by federal agencies based on his 6 learning disabilities and nerve damage in his hand, and suffers from severe confusion caused by 7 soy but has been denied disability status at least four times. Id. at 15. He was not allowed 8 representation or to be present at the hearings to determine whether he was disabled. Id. Plaintiff 9 claims that he has repeatedly had his legal property withheld, thrown away, or lost and that he is 10 being denied meaningful access to the grievance process because of his disability. Id. at 16. 11 C. Claims for Which a Response Will Be Required 12 Plaintiff’s allegations against Hla, Hernandez, Gaynor, Ullery, and Gates are sufficient to 13 state claims for relief under the Eighth Amendment and these defendants will be required to 14 respond to the complaint if plaintiff chooses not to amend. See Jett v. Penner, 439 F.3d 1091 , 15 1096 (9th Cir. 2006) (deliberate indifference “may appear when prison officials deny, delay or 16 intentionally interfere with medical treatment” (citation omitted)). 17 D. Failure to State a Claim 18 i. Sovereign Immunity 19 Plaintiff’s § 1983 claims against the CDCR, MCSP, CALPIA, and CCHCS are barred by 20 sovereign immunity because they are arms of the state. See Howlett v. Rose, 496 U.S. 356 , 365 21 (1990) (the state and arms of the state “are not subject to suit under § 1983” (citing Will v. Mich. 22 Dep’t of State Police, 491 U.S. 58 (1989))). Furthermore, plaintiff states he is suing the 23 defendants in their individual and official capacities. ECF No. 11 at 5, 9, 15. However, claims 24 for damages against state officials acting in their official capacity are barred by sovereign 25 immunity because “a suit against a state official in his or her official capacity is not a suit against 26 the official but rather is a suit against the official’s office” and therefore “no different from a suit 27 against the State itself.” Will, 491 U.S. at 71 (citations omitted). Accordingly, any claims for 28 damages against defendants in their official capacities are barred. 1 To the extent plaintiff seeks injunctive relief in the form of policy change, plaintiff does 2 not identify the allegedly deficient policy or who he is seeking injunctive relief from. Plaintiff 3 therefore fails to any state claims for injunctive relief against any defendant in their official 4 capacity. See Colwell v. Bannister, 763 F.3d 1060, 1070 (9th Cir. 2014) (to state a claim for 5 injunctive relief plaintiff must “identify the law or policy challenged as a constitutional violation 6 and name the official within the entity who can appropriately respond to injunctive relief” 7 (citation omitted)). 8 ii. Personal Involvement 9 “Liability under § 1983 must be based on the personal involvement of the defendant,” 10 Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (citing May v. Enomoto, 633 F.2d 11 164, 167 (9th Cir. 1980)), and “[v]ague and conclusory allegations of official participation in civil 12 rights violations are not sufficient,” Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982) 13 (citations omitted). Furthermore, “[t]here is no respondeat superior liability under section 1983.” 14 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted). A supervisor may be liable 15 for the constitutional violations of his subordinates if he “knew of the violations and failed to act 16 to prevent them.” Taylor, 880 F.2d at 1045 . Finally, supervisory liability may also exist without 17 any personal participation if the official implemented “a policy so deficient that the policy itself is 18 a repudiation of the constitutional rights and is the moving force of the constitutional violation.” 19 Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations 20 marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825, 836-38 (1970). 21 Aside from general allegations that all defendants have violated his rights or implemented 22 policies or customs that violate his rights, plaintiff does not make any allegations against 23 defendants Covello, Macomber, Davidson, Stacy, Costa, Cribari, and Miranda, many of whom 24 appears to have been named solely based on their supervisory positions. Because plaintiff has not 25 identified any specific action taken by these defendants, he fails to state any claims against them 26 because general allegations that plaintiff’s rights were violated or allegations against defendants 27 collectively are insufficient. Moreover, while plaintiff alleges that defendants implemented 28 constitutionally deficient policies, he fails to identify the policies at issue or allege facts indicating 1 that the violation of his rights was due to the challenged policy rather than the actions of 2 individual defendants. 3 iii. Due Process 4 It appears that plaintiff may be attempting to state a due process claim based on the denial 5 or requests for disability accommodation. ECF No. 11 at 15. A viable procedural due process 6 claim requires “deprivation of a constitutionally protected liberty or property interest and denial 7 of adequate procedural protection.” Krainski v. Nevada ex rel. Bd. Of Regents of Nev. Sys. of 8 Higher Educ., 616 F.3d 963, 970 (9th Cir. 2010) (citing Brewster v. Bd. of Educ. of the Lynwood 9 Unified Sch. Dist., 149 F.3d 971 , 982 (9th Cir. 1998)). However, it appears that plaintiff is 10 attempting to challenge determinations whether to grant requests for accommodation, not whether 11 to remove them. Accordingly, plaintiff was not at risk of being deprived of an interest in any 12 accommodation devices he may have been seeking, and he fails to identify any specific liberty 13 interest that was at stake. Furthermore, to the extent the accommodation request process can be 14 considered a form of administrative grievance or plaintiff claims he was denied access to the 15 grievance process, prisoners do not have “a separate constitutional entitlement to a specific prison 16 grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v. 17 Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Plaintiff’s allegations are therefore insufficient to 18 state a due process claim. 19 iv. Access to the Court 20 Plaintiff asserts that defendants deprived him of his right to access the courts. ECF No. 11 21 at 15-16. While inmates have a “fundamental constitutional right of access to the courts,” Lewis 22 v. Casey, 518 U.S. 343, 346 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)), that 23 right covers only limited types of cases: direct appeals from convictions for which the inmates are 24 incarcerated, habeas petitions, and civil rights actions regarding prison conditions, id. at 354. 25 “Impairment of any other litigating capacity is simply one of the incidental (and perfectly 26 constitutional) consequences of conviction and incarceration.” Id. at 355. In this case, plaintiff 27 fails to provide any information regarding the case(s) he was trying to pursue or identify who 28 interfered with his access to the courts and how. As a result, he fails to state a claim for relief. 1 v. ADA and RA Claims 2 To state a claim under Title II of the ADA, a plaintiff must allege that: 3 (1) he “is an individual with a disability;” (2) he “is otherwise qualified to participate in or receive the benefit of some public 4 entity’s services, programs, or activities;” (3) he “was either excluded from participation in or denied the benefits of the public 5 entity’s services, programs, or activities, or was otherwise discriminated against by the public entity;” and (4) “such exclusion, 6 denial of benefits, or discrimination was by reason of [his] disability.” [7] McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (alteration in original) [8] (quoting Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam)). [9] To be entitled to compensatory damages under the ADA, plaintiff must demonstrate that [10] the discrimination he experienced was the result of deliberate indifference, which “requires both [11] knowledge that a harm to a federally protected right is substantially likely, and a failure to act [12] upon that likelihood.” Duvall, 260 F.3d at 1138-39 (citations omitted). “When the plaintiff has [13] alerted the public entity to his need for accommodation . . . , the public entity is on notice that an [14] accommodation is required, and the plaintiff has satisfied the first element of the deliberate [15] indifference test.” Id. at 1139. “[I]n order to meet the second element of the deliberate [16] indifference test, a failure to act must be a result of conduct that is more than negligent, and [17] involves an element of deliberateness.” Id. (citations omitted) [18] Plaintiff states that he is suing defendants in their individual or official capacities. ECF [19] No. 11 at 15. To the extent he is attempting to bring ADA claims against Covello, Macomber, [20] Stacy, Costa, Ullery, Cribari, Miranda, and Gates in their individual capacities, these claims fail. [21] Stewart v. Unknown Parties, 483 F. App’x 374, 374 (9th Cir. 2012) (citing Lovell, 303 F.3d at [22] 1052); see also Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (“[A] plaintiff cannot [23] bring an action under 42 U.S.C. § 1983 against a State official in her individual capacity to [24] vindicate rights created by Title II of the ADA or section 504 of the Rehabilitation Act.”)); Garcia [25] v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98 , 107 (2d Cir. 2001) (“[N]either Title II of [26] the ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits against state [27] officials.” (citations omitted)). To the extent plaintiff is asserting his ADA claims against these [28] 1 defendants in their official capacities,1 such claims are equivalent to a suit against the entity itself 2 and plaintiff has already named the CDCR as a defendant. The claims against these defendants 3 are therefore redundant and may be dismissed. Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles 4 County Sheriff Dep’t, 533 F.3d 780, 799 (9th Cir. 2008) (citations omitted). 5 To the extent plaintiff is alleging that the CDCR, MCSP, and CCHCS have violated his 6 rights under the ADA, the claim fails. Plaintiff does not identify the programs, services, or 7 activities he was excluded from, nor does he explain how denial of representation or a hearing 8 denied him access to a program, service, or activity. To the extent plaintiff is attempting to claim 9 he was prevented from accessing the grievance process, he does not explain how access was 10 denied as a result of his disability (i.e., what accommodations was he denied for what disability 11 and how did that prevent him from accessing the grievance process). 12 E. Leave to Amend 13 For the reasons set forth above, the court finds that the first amended complaint states 14 cognizable Eighth Amendment claims against defendants Hla, Hernandez, Gaynor, Ullery, and 15 Gates. The complaint does not state any other claims for relief against these defendants or any 16 claims for relief against defendants Covello, Macomber, Davidson, Stacy, Costa, Cribari, 17 Miranda, MCSP, CDCR, CALPIA, and CCHCS. However, it appears that plaintiff may be able 18 to allege facts to remedy this and he will be given the opportunity to amend the complaint if he 19 desires. Plaintiff may proceed forthwith to serve defendants Hla, Hernandez, Gaynor, Ullery, and 20 Gates on Eighth Amendment claims or he may delay serving any defendant and amend the 21 complaint. 22 Plaintiff will be required to complete and return the attached notice advising the court how 23 he wishes to proceed. If plaintiff chooses to amend the complaint, he will be given thirty days to 24 file an amended complaint. If plaintiff elects to proceed on his Eighth Amendment claims against 25 defendants Hla, Hernandez, Gaynor, Ullery, and Gates without amending the complaint, the court 26 will proceed to serve the complaint. A decision to go forward without amending the complaint [27] 1 A state official sued in their official capacity “represents a ‘public entity’ under Title II.” 28 Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187 (9th Cir. 2003). 1 will be considered a voluntarily dismissal without prejudice of all other claims and defendants. 2 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 3 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, [4] 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how each named 5 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 6 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 7 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, [8] 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 9 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266 , 10 268 (9th Cir. 1982) (citations omitted). 11 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 12 his amended complaint complete. Local Rule 220 requires that an amended complaint be 13 complete in itself without reference to any prior pleading. This is because, as a general rule, an 14 amended complaint supersedes any prior complaints. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 15 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 16 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 17 in subsequent amended complaint to preserve appeal). Once plaintiff files an amended complaint, 18 any previous complaints no longer serve any function in the case. Therefore, in an amended 19 complaint, as in an original complaint, each claim and the involvement of each defendant must be 20 sufficiently alleged. 21 The court further notes that plaintiff attached over 150 pages of exhibits to the complaint. 22 ECF No. 11 at 20-177. Plaintiff is advised that should he choose to amend the complaint, at this 23 stage, it is not necessary to provide evidence to prove his claims, and the attachment of extensive 24 exhibits is discouraged. Though plaintiff provides citations to his exhibits throughout the 25 complaint, the court will not sift through them to try and determine which are intended to serve a 26 merely evidentiary purpose and which are intended to provide the factual basis of plaintiff’s 27 claims. Nor will the court attempt to determine what claims plaintiff may be attempting to make 28 by citing to exhibits. In amending the complaint, plaintiff should explain to the court what each 1 defendant did rather than relying on exhibits. 2 III. Motion to Compel 3 Plaintiff has filed a motion to compel defendants Covello and Stacy to produce a copy of 4 his medical records. ECF No. 12. This complaint has yet to be served on any defendant and any 5 discovery is therefore premature. The motion to compel will therefore be denied. 6 IV. Plain Language Summary of this Order for a Pro Se Litigant 7 Some of the allegations in the first amended complaint state claims against the defendants 8 and some do not. You have stated Eighth Amendment claims against defendants Hla, Hernandez, 9 Gaynor, Ullery, and Gates. You have not stated any other claims against these defendants, and 10 you have not stated any claims against defendants Covello, Macomber, Davidson, Stacy, Costa, 11 Cribari, Miranda, MCSP, CDCR, CALPIA, and CCHCS. In order to state claims against the 12 individual defendants, you must allege facts showing what each defendant did or did not do that 13 you believe violated your rights. 14 You have a choice to make. You may either (1) proceed immediately on your Eighth 15 Amendment claims against defendants Hla, Hernandez, Gaynor, Ullery, and Gates and 16 voluntarily dismiss the other claims and defendants or (2) try to amend the complaint. If you 17 want to go forward without amending the complaint, you will be voluntarily dismissing without 18 prejudice all claims and defendants except for your Eighth Amendment claims against defendants 19 Hla, Hernandez, Gaynor, Ullery, and Gates. If you choose to file an amended complaint, it must 20 include all claims you want to bring. Once an amended complaint is filed, the court will not look 21 at any information in the original complaint. Any claims and information not in the second 22 amended complaint will not be considered. You must complete the attached notification 23 showing what you want to do and return it to the court. Once the court receives the notice, it will 24 issue an order telling you what you need to do next (i.e. file an amended complaint or wait for 25 defendants to be served). 26 In accordance with the above, IT IS HEREBY ORDERED that: 27 1. Plaintiff’s motion to compel (ECF No. 12) is DENIED. 28 2. The complaint states cognizable Eighth Amendment claims against defendants Hla, 1 | Hernandez, Gaynor, Ullery, and Gates. The complaint does not state any other cognizable claims 2 || for which relief can be granted. 3 3. Plaintiff has the option to proceed immediately on his Eighth Amendment claims 4 || against defendants Hla, Hernandez, Gaynor, Ullery, and Gates as set forth in Section II.C above, 5 || or to amend the complaint. 6 4. Within fourteen days of service of this order, plaintiff shall complete and return the 7 || attached form notifying the court whether he wants to proceed on the screened complaint or 8 | whether he wants to file an amended complaint. If plaintiff does not return the form, the court 9 || will assume that he is choosing to proceed on the complaint as screened and will recommend 10 || dismissal without prejudice of all claims and defendants except the Eighth Amendment claims 11 || against defendants Hla, Hernandez, Gaynor, Ullery, and Gates. 12 | DATED: August 6, 2024 13 yd Af, 14 ALLISON CLAIRE 15 UNITED STATES MAGISTRATE JUDGE [7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 STANLEY W. MUNDY, No. 2:23-cv-0061 WBS AC P 12 Plaintiff, 13 v. NOTICE OF ELECTION 14 PATRICK CAVELLO, et al., 15 Defendants. [16] 17 Check one: 18 _____ Plaintiff wants to proceed immediately on his Eighth Amendment claims against 19 defendants Hla, Hernandez, Gaynor, Ullery, and Gates without amending the complaint. 20 Plaintiff understands that by going forward without amending the complaint he is 21 voluntarily dismissing without prejudice all other claims and defendants pursuant to 22 Federal Rule of Civil Procedure 41(a). [23] 24 _____ Plaintiff wants to amend the complaint. [25] 26 DATED:_______________________ 27 Stanley W. Mundy Plaintiff pro se