1 NOT FOR PUBLICATION 2

UNITED STATES DISTRICT COURT

3

SOUTHERN DISTRICT OF CALIFORNIA

4 Lonnie KOCONTES, Case No.: 24-cv-1513-AGS-AHG 5 Plaintiff,

ORDER GRANTING MOTION TO

6 v. PROCEED IN FORMA PAUPERIS 7 (ECF 2) AND DISMISSING Razel GUIMBAOLIBOT, et al.,

COMPLAINT IN PART

8 Defendants.

9

10 Inmate Lonnie Kocontes, proceeding without an attorney, moves to proceed in forma 11 pauperis, that is, without prepaying the court’s filing fees. In this civil-rights suit under 12 42 U.S.C. § 1983, California Government Code section 845.6, and California state 13 common law, he alleges that the catheter-related care he received in prison harmed him 14 and violated his constitutional rights. At this early stage, the Court concludes that some of 15 his allegations are legally sufficient. For the reasons below, the motion to proceed IFP is 16 granted, and the complaint partially survives the mandatory screening. 17 MOTION TO PROCEED IN FORMA PAUPERIS 18 Parties instituting most civil actions in federal court must pay a filing fee of $405.1 19 See 28 U.S.C. § 1914(a). A party may initiate a civil action without prepaying the required 20 filing fee if the Court grants leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a); 21 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 22 To proceed IFP, plaintiffs must establish their inability to pay by filing an affidavit 23 regarding their income and assets. See Escobedo v. Applebees, 787 F.3d 1226, 1234 24 (9th Cir. 2015). Prisoners seeking to establish an inability to pay must also submit a 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional 27 administrative fee of $55. See 28 U.S.C. § 1914(a); Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The additional $55 28 1 “certified copy of the [prisoner’s] trust fund account statement (or institutional equivalent) 2 for” “the 6-month period immediately preceding the filing of the complaint.” 3 28 U.S.C. § 1915(a)(2). If the prisoner has no assets, the Court assesses no initial payment. 4 See 28 U.S.C. §§ 1915(b)(1) & (4). But a prisoner who proceeds IFP and has “more than 5 $10 in his account” must still pay the $350 statutory fee in installments regardless of 6 whether their action is ultimately dismissed. 28 U.S.C. § 1915(b)(2); Bruce v. Samuels, 7 577 U.S. 82, 84 (2016). 8 With his motion, Kocontes provided a copy of his prison certificate and trust account 9 statement. (See ECF 4.) During the six months before filing suit, Kocontes had an average 10 monthly balance of $0.02 and average monthly deposits of $0.00. (Id. at 1.) And his 11 available account balance was zero when he filed suit. (Id.) Kocontes has thus established 12 an inability to prepay the required filing fee, and the Court grants his IFP motion. Although 13 the Court assesses no initial payment, because he currently has less than $10 in his account, 14 Kocontes must pay the full $350 filing fee in monthly installments equaling “20 percent of 15 the preceding month’s income credited” to his account “each time the amount in [his] 16 account exceeds $10.” 28 U.S.C. § 1915(b)(2). 17 SCREENING 18 A. Legal Standards 19 The Court must screen Kocontes’s complaint and dismiss it to the extent that it is 20 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 21 immune. See 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). “The standard for determining 22 whether Plaintiff has failed to state a claim upon which relief can be granted under 23 § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for 24 failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). That is, a 25 complaint must “contain sufficient factual matter” “to state a claim to relief that is plausible 26 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 27 B. Kocontes’s Allegations 28 Kocontes alleges he had prostate surgery at an outside hospital and was returned to 1 prison with a catheter the next day. (ECF 1, at 3.) He claims defendant California 2 Correctional Health Care Services (CCHCS) failed to provide transportation to the hospital 3 for a follow-up appointment, which he missed. (Id.) 4 On the night of that missed appointment, Kocontes experienced a “sudden gush of 5 blood and tissue in his catheter bag, which he reported” to the prison clinic. (Id.) Defendant 6 nurse Guimbaolibot eventually saw him, and Kocontes showed Guimbaolibot his catheter 7 bag while “express[ing] concern about how little fluid had drained overnight, and 8 point[ing] out that the bowl at the top of the bag was empty.” (Id.) He told Guimbaolibot 9 that “his pain had increased and he felt bloated.” (Id.) Guimbaolibot “briefly glanced at the 10 bag, gave [Kocontes] the ointment he requested, and told [Kocontes] if he continued to 11 have concerns about the catheter to submit a health care services request form” before 12 “terminating the examination.” (Id.) 13 Kocontes returned to his cell where about an hour later “blood and urine began 14 spewing from the end of his penis past the catheter tube.” (Id.) His throat was still too 15 hoarse from the throat tube used during surgery to yell for help; he began banging on his 16 cell door, but no one was close enough to hear him. (Id. at 3–4.) “Realizing that the catheter 17 was plugged and the only way to stop the flow under pressure was to remove it, [he] yanked 18 out the catheter. This caused severe trauma to his penis, which continued to bleed.” (Id. 19 at 4.) Kocontes ended up going to the emergency room where “he was finally able to get 20 someone’s attention.” (Id.) He “continues to experience burning and pain when urinating,” 21 and “has continuing anxiety about urinating because he never knows how severe the 22 burning pain will be.” (Id. at 4, 7.) 23 Kocontes alleges CCHCS failed to “evaluate whether the scarring inside [my] penis 24 can be treated,” and that “given his medical training, Guimbaolibot had to know what 25 would happen to [Kocontes] when pressure in his bladder built up from the plugged 26 catheter. His failure to ensure [Kocontes]’s catheter was promptly changed was reckless 27 disregard.” (ECF 1, at 7.) Kocontes claims defendants’ failure to provide him adequate and 28 immediate medical care in response to an obvious emergency (1) showed deliberate 1 indifference to a serious medical need in violation of the Eighth Amendment, 2 (2) demonstrated a failure to summon medical care in violation of California Government 3 Code section 845.6, and (3) amounted to intentional infliction of emotional distress under 4 California common law. (Id. at 4, 6–7.) 5 C. Discussion 6 1. Eighth Amendment Deliberate Indifference 7 Kocontes alleges that the defendants violated his Eighth Amendment rights with 8 their deliberate indifference to his serious medical needs. To succeed, he must sufficiently 9 allege: (1) “the existence of a serious medical need” and (2) the prison official’s “deliberate 10 indifference” to that need. Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014). 11 Officials are deliberately indifferent when they “know[] of and disregard[] an excessive 12 risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This 13 includes circumstances when officials “deny, delay, or intentionally interfere with medical 14 treatment.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002). Kocontes brings 15 deliberate-indifference claims against nurse Guimbaolibot and California Correctional 16 Health Care Services. 17 a. Nurse Guimbaolibot 18 Kocontes’s allegations with respect to the serious-medical-need prong are sufficient 19 to survive the “low threshold” applicable at screening. See Wilhelm v. Rotman, 680 F.3d 20 1113, 1123 (2012); see also Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994) 21 (“[I]ndicia of a ‘serious’ medical need include (1) the existence of an injury that a 22 reasonable doctor would find important and worthy of comment or treatment, (2) the 23 presence of a medical condition that significantly affects an individual’s daily activities, 24 and (3) the existence of chronic or substantial pain.”). 25 To succeed on the second prong, Kocontes must plausibly allege “(a) a purposeful 26 act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused 27 by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). A prison official 28 can be held liable only if he “knows of and disregards an excessive risk to inmate health or 1 safety; the official must both be aware of facts from which the inference could be drawn 2 that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 3 511 U.S. at 837. 4 Kocontes alleges that, “given his medical training, Guimbaolibot had to know what 5 would happen to [Kocontes] when pressure in his bladder built up from the plugged 6 catheter. His failure to ensure [Kocontes]’s catheter was promptly changed was reckless 7 disregard.” (ECF 1, at 7.) At this stage of the analysis, Kocontes plausibly alleges 8 Guimbaolibot’s deliberate indifference. Within one week of Kocontes’s prostate surgery, 9 he felt blood and urine gushing into his catheter, noticed the empty bag at the end of his 10 catheter, and reported it all to Guimbaolibot. (Id. at 3.) Kocontes also described his 11 increased pain and bloating to Guimbaolibot. (Id.) Yet Guimbaolibot allegedly failed to 12 further inspect the catheter. (Id.) Guimbaolibot “briefly glanced at the bag,” prescribed 13 ointment, and “terminat[ed] the examination.” (Id.) 14 Given all Kocontes allegedly reported, Guimbaolibot’s purported cursory inspection 15 of the catheter bag indicates a “failure to respond” to the “pain or possible medical need” 16 associated with Kocontes’s post-surgery catheter issues. See Jett, 439 F.3d at 1096. Further, 17 roughly an hour after this appointment, “blood and urine began spewing from the end of 18 [Kocontes’s] penis past the catheter tube,” (ECF 1, at 3), so Kocontes has plausibly alleged 19 that there was “harm caused by the indifference.” See Jett, 439 F.3d at 1096. 20 Taken together, Kocontes’s allegations suggest Guimbaolibot “kn[ew] of” the 21 serious risk to Kocontes’s health and “disregard[ed]” the risk. Given these facts, and 22 Guimbaolibot’s medical training, Kocontes has reasonably alleged that Guimbaolibot “had 23 to know what would happen” “when pressure in [Kocontes’s] bladder built up from the 24 plugged catheter.” (ECF 1, at 7.) Thus, Kocontes has plausibly alleged deliberate 25 indifference to his serious medical need. 26 b. California Correctional Health Care Services 27 Kocontes alleges defendant California Correctional Health Care Services failed to 28 provide transportation to the outside hospital for his follow-up appointment and failed to 1 “evaluate whether the scarring inside [his] penis can be treated.” (ECF 1, at 3, 7.) But 2 CCHCS is an agency of the State of California, not a “person” subject to suit under § 1983, 3 and thus has Eleventh Amendment immunity. See Pennhurst State Sch. & Hosp. v. 4 Halderman, 465 U.S. 89, 100 (1984) (noting that the Eleventh Amendment “proscribe[s]” 5 lawsuits against a “State or one of its agencies or departments”); see also Dragasits v. 6 California, No. 16cv1998-BEN (JLB), 2016 WL 6804947, at *3 (S.D. Cal. Nov. 15, 2016) 7 (“California’s Department of Corrections and Rehabilitation and any state prison, 8 correctional agency, sub-division, or department under its jurisdiction, are not ‘persons’ 9 subject to suit under § 1983”). 10 Absent a waiver, the “Eleventh Amendment bars suits for money damages in federal 11 court against a state, its agencies, and state officials acting in their official capacities.” 12 Aholelei v. Dep’t of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007). “The State of 13 California has not waived its Eleventh Amendment immunity with respect to claims for 14 money damages brought under § 1983 in federal court, and the Supreme Court has held 15 that § 1983 was not intended to abrogate a State’s Eleventh Amendment immunity.” Brown 16 v. California Dep’t of Corr., 554 F.3d 747, 752 (9th Cir. 2009). 17 But the Eleventh Amendment does not bar claims for injunctive relief against state 18 officials in their official capacities. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 19 n.10 (1989) (“a state official in his or her official capacity, when sued for injunctive relief, 20 would be a person under § 1983”). To the extent Kocontes seeks injunctive relief to require 21 CCHCS to “evaluate whether the scarring inside [his] penis can be treated,” CCHCS is not 22 a proper defendant for such a claim. (See ECF 1, at 7.) When a plaintiff seeks prospective 23 injunctive relief, the proper defendant is the official responsible for ensuring that the 24 injunctive relief is carried out. See Hartmann v. California Dep’t of Corr. & Rehab., 25 707 F.3d 1114, 1127 (9th Cir. 2013) (recognizing that a plaintiff seeking injunctive relief 26 must “name the official within the entity who can appropriately respond to injunctive 27 relief”). 28 Kocontes has not named a defendant with authority to require CCHCS to medically 1 evaluate him. See, e.g., Pouncil v. Tilton, 704 F.3d 568, 576 (9th Cir. 2012) (noting 2 plaintiffs must name the person “responsible for ensuring that injunctive relief” is “carried 3 out, even if he was not personally involved in the decision” underlying plaintiffs’ claims); 4 Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983) (“A federal court may issue an injunction 5 if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; 6 it may not attempt to determine the rights of persons not before the court.”). 7 Thus, the Eighth Amendment deliberate-indifference claim against defendant 8 CCHCS is dismissed. 9 2. Cal. Gov’t Code § 845.6 10 Kocontes also asserts claims against CCHCS and Guimbaolibot under California 11 Government Code section 845.6. (ECF 1, at 6.) That statute creates liability for any “public 12 employee,” as well as “the public entity where the employee is acting within the scope of 13 his employment,” “if the employee knows or has reason to know that the prisoner is in need 14 of immediate medical care and he fails to take reasonable action to summon such medical 15 care.” Cal. Gov’t Code § 845.6. 16 a. California Correctional Health Care Services 17 CCHCS is allegedly a “division of” the California Department of Corrections and 18 Rehabilitation, (ECF 1, at 2), which is an “arm[] of the” California “state government,” see 19 Bennett v. California, 406 F.2d 36, 39 (9th Cir. 1969). Absent a waiver, the “Eleventh 20 Amendment bars suits for money damages in federal court against a state, its agencies, and 21 state officials acting in their official capacities.” Aholelei, 488 F.3d at 1147. And states 22 only waive their Eleventh Amendment immunity when they waive it with “the most 23 express language or by such overwhelming implications from the text as will leave no room 24 for any other reasonable construction.” Edelman v. Jordan, 415 U.S. 651, 673 (1974) 25 (cleaned up). Further, states’ consent to suit in courts of their “own creation” does not 26 indicate “consent to suit in federal court.” College Sav. Bank v. Florida Prepaid 27 Postsecondary Educ. Expense Bd., 527 U.S. 666, 676 (1999). Nor does authorization to 28 generally “sue and be sued” or be sued “in any court of competent jurisdiction.” Id. 1 (cleaned up). 2 In section 845.6, California authorized lawsuits against a “public entity” when its 3 “employee is acting within the scope of his employment.” Cal. Gov’t Code § 845.6. But 4 the statute makes no mention of lawsuits in federal court, so one “reasonable [statutory] 5 construction” is that California only consented to lawsuits in its own state courts. See 6 Edelman, 415 U.S. at 673. Because there is no “express language” or “overwhelming 7 implication[]” that California waived its Eleventh Amendment immunity, Kocontes’s 8 845.6 claim against CCHCS is barred. See College Sav. Bank, 527 U.S. at 676. 9 b. Nurse Guimbaolibot 10 Kocontes’s section 845.6 claim against Guimbaolibot, however, is not barred by the 11 Eleventh Amendment. See Jett, 439 F.3d at 1093 (allowing a section 845.6 claim in federal 12 court against California prison medical professionals). To succeed on a section 845.6 claim, 13 California state intermediate courts and the Ninth Circuit U.S. Court of Appeals agree that 14 plaintiffs must establish “three elements: (1) the public employee knew or had reason to 15 know of the need (2) for immediate medical care, and (3) failed to reasonably summon 16 such care.” Jett, 439 F.3d at 1099 (citing Cal. Gov’t Code § 845.6); Castaneda v. 17 Department of Corr. & Rehab., 151 Cal. Rptr. 3d 648, 663 (Ct. App. 2013). The courts 18 disagree, however, about the scope of the second and third elements—and this case lies at 19 the crux of that disagreement. 20 i. Ninth Circuit Court of Appeals’ Analysis 21 In Jett, the Ninth Circuit held that defendants properly “summon” “immediate 22 medical care” only when they “both diagnos[e] and treat[]” plaintiffs. 439 F.3d at 1099. 23 The incarcerated plaintiff in Jett fractured his thumb, and an emergency-room doctor saw 24 him that same day. Id. at 1094. Despite a referral to see an orthopedic specialist “early 25 th[at] week,” the plaintiff did not see one until nearly six months later. Id. at 1094–95. By 26 then, his “fracture had healed improperly.” Id. at 1095. During those months, the plaintiff 27 had a series of medical appointments for his hand, but none with orthopedic specialists. Id. 28 at 1094–95. The Jett court ruled that the defendants “violated § 845.6 if they had 1 knowledge of [plaintiff]’s need for immediate medical care to set and cast his fracture and 2 did not summon such care.” Id. at 1099. 3 ii. California State Appellate Court’s Analysis 4 In Castaneda, however, a California appellate court found that Jett’s section 845.6 5 analysis “ignores California authority interpreting that statute” and “expand[s]” public- 6 entity liability “beyond that contemplated by the Legislature.” 151 Cal. Rptr. 3d at 666. 7 The Castaneda state-prisoner plaintiff saw medical providers who thrice referred him to a 8 urologist—including an “[u]rgent urology referral”—but he never saw one while in state 9 custody. Id. at 653–54. The defendant prison then transferred him to Immigration and 10 Customs Enforcement detention, and he spent his year in ICE detention requesting proper 11 medical care, also to no avail. Id. at 654; Hui v. Castaneda, 559 U.S. 799, 802–03 (2010). 12 Within one month of his release from detention, he was diagnosed with “penile cancer” 13 and “had his penis amputated.” Hui, 559 U.S. at 803. He died one year later. Id. 14 Plaintiff argued that Jett’s section 845.6 analysis required the state to “summon care 15 that the prisoner ‘actually need[ed].’” Castaneda, 151 Cal. Rptr. 3d at 665. But the 16 California appellate court held that once the state agency “summoned” medical providers, 17 to “examine” the plaintiff, “it summoned health care as contemplated by section 845.6.” 18 Id. at 664. 19 The California court reasoned that section 845.6 is “very narrowly written” and only 20 authorizes causes of action for “failure to summon medical care,” not for “malpractice in 21 providing that care.” Id. at 663; see also Nelson v. State of California, 188 Cal. Rptr. 479, 22 485 (Ct. App. 1982) (holding any failure to “provide necessary medication or treatment” 23 once “summoned,” “cannot be characterized as a failure to summon medical care”). 24 iii. Controlling Interpretation 25 “When interpreting state law,” federal courts are “bound by the decision of the 26 highest state court.” In re Kirkland, 915 F.2d 1236, 1238 (9th Cir. 1990). But “[i]n the 27 absence of such a decision, a federal court must predict how the highest state court would 28 decide the issue using intermediate appellate court decisions, decisions from other 1 jurisdictions, statutes, treatises, and restatements as guidance.” Id. at 1239. Absent 2 “convincing evidence that the highest” state court “would decide differently” than the state 3 intermediate court, federal courts are “obligated to follow the decisions of the state’s 4 intermediate courts.” Id. (cleaned up). 5 Notwithstanding these principles, United States district courts can only “disregard 6 [Ninth Circuit] precedent” when “intervening [United States] Supreme Court authority is 7 clearly irreconcilable with” the Ninth Circuit’s earlier precedent. Day v. Apoliona, 496 F.3d 8 1027, 1031 (9th Cir. 2007). Otherwise, district courts are “bound by” the Ninth Circuit’s 9 holdings. Id. 10 The California State Supreme Court has not weighed in here on how courts should 11 interpret section 845.6—it denied review of Castaneda. See 151 Cal. Rptr. 3d at 648. And 12 the Ninth Circuit has not rescinded its Jett standard. See Horton by Horton v. City of 13 Santa Maria, 915 F.3d 592, 607–08 (9th Cir. 2019) (applying Jett). So, although this Court 14 should look to Castaneda for “guidance” when interpreting section 845.6, it is “bound” by 15 Jett. See Kirkland, 915 F.2d at 1239; Day, 496 F.3d at 1031. Thus, when the Ninth Circuit 16 predicted how it believes California’s highest court would interpret section 845.6 in Jett, it 17 bound this Court with that interpretation. 18 iv. Applying Jett 19 Turning to the Ninth Circuit’s application of the relevant three-part test, first, 20 Kocontes sufficiently alleges that the statute implicates Guimbaolibot as a “public 21 employee.” (ECF 1, at 2 (Guimaolibot “is employed by the Calif. Dept. of Corrections + 22 Rehabilitation”)); see Jett, 439 F.3d at 1099. Further, Kocontes told Guimbaolibot about 23 the blood and urine he felt gushing into his catheter, the surprisingly empty catheter bag, 24 and his increased pain and bloating. (ECF 1, at 3.) So the claim survives the first Jett prong, 25 as Guimbaolibot, a “public employee,” “knew or had reason to know” of Kocontes’s 26 circumstance. See Jett, 439 F.3d at 1099. 27 Second, Kocontes’s situation implicated a need for “immediate medical care” given 28 he was in his post-prostate-operation period, in pain, and having catheter issues. (ECF 1, 1 at 3); see Jett, 439 F.3d at 1099. 2 Finally, Guimbaolibot “failed to reasonably summon” immediate medical care as 3 required by the Ninth Circuit. See Jett, 439 F.3d at 1099. As previously discussed, Jett held 4 that section 845.6 requires defendants to “both diagnos[e] and treat[]” plaintiffs. Id. Here, 5 Guimbaolibot “briefly glanced at the bag,” prescribed ointment, and “terminat[ed] the 6 examination.” (ECF 1, at 3.) This failure to inspect the bag in conjunction with the fact that 7 “blood and urine began spewing from the end of [Kocontes’s] penis past the catheter tube” 8 within roughly an hour of the appointment indicates a failure to properly “diagnos[e] and 9 treat[]” the issue. (Id.); see Jett, 439 F.3d at 1099. Like in Jett, even though Kocontes saw 10 a medical provider, Kocontes’s allegations raise a question as to whether Guimbaolibot 11 “had knowledge of” Kocontes’s “need for [an] immediate” catheter evaluation but “did not 12 summon such care.” See 439 F.3d at 1099. 13 Consequently, Kocontes’s section 845.6 claim against Guimbaolibot survives this 14 Court’s screening. 15 3. Intentional Infliction of Emotional Distress 16 Kocontes also alleges a state-law claim of intentional infliction of emotional distress 17 against both defendants. (See ECF 1, at 7.) The claim fails against both. 18 First, his intentional-infliction claim against CCHCS fails because, as previously 19 discussed, absent a waiver, the “Eleventh Amendment bars suits for money damages in 20 federal court against a state, its agencies, and state officials acting in their official 21 capacities.” Aholelei, 488 F.3d at 1147. And courts “‘indulge every reasonable presumption 22 against waiver’ of fundamental constitutional rights,” including “[s]tate sovereign 23 immunity.” College Sav. Bank, 527 U.S. at 682 (quoting Aetna Ins. Co. v. Kennedy ex rel. 24 Bogash, 301 U.S. 389, 393 (1937)). There is no evidence California has waived its 25 Eleventh Amendment immunity for intentional-infliction-of-emotional-distress claims in 26 federal court, so that damages claim against CCHCS is dismissed. See Hobdy v. Los 27 Angeles Unified Sch. Dist., 386 F. App’x 722, 724–25 (9th Cir. 2010). 28 Second, Kocontes’s claim against Guimbaolibot fails because he has not alleged that 1 he has suffered sufficiently “extreme or severe emotional distress.” See So v. Shin, 151 Cal. 2 Rptr. 3d 257, 271 (Ct. App. 2013). The elements of a claim of intentional infliction of 3 emotional distress are “(1) the defendant engages in extreme and outrageous conduct with 4 the intent to cause, or with reckless disregard for the probability of causing, emotional 5 distress; (2) the plaintiff suffers extreme or severe emotional distress; and (3) the 6 defendant’s extreme and outrageous conduct was the actual and proximate cause of the 7 plaintiff’s extreme or severe emotional distress.” Id.; see also Sabow v. United States, 8 93 F.3d 1445, 1454 (9th Cir. 1996). 9 For the emotional distress to be sufficiently “extreme or severe,” plaintiffs must 10 experience “emotional distress of such substantial quality or enduring quality that no 11 reasonable person in civilized society should be expected to endure it.” Potter v. Firestone 12 Tire & Rubber Co., 6 Cal. 4th 965, 1004 (1993) (cleaned up). The “requisite emotional 13 distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, 14 humiliation, embarrassment, anger, chagrin, disappointment[,] or worry.” Fletcher v. 15 Western Nat’l Life Ins. Co., 89 Cal. Rptr. 78, 91 (Ct. App. 1970). But mere “anxiety” is 16 insufficient. See Hughes v. Pair, 46 Cal. 4th 1035, 1051 (2009); see also Lawler v. 17 Montblanc N. Am., LLC, 704 F.3d 1235, 1246 (9th Cir. 2013) (holding that anxiety, 18 sleeplessness, upset stomach, and muscle twitches alone do not rise to the level of 19 “severe”). But see Kelly-Zurian v. Wohl Shoe Co., 27 Cal. Rptr. 2d 457, 463 (Ct. App. 20 1994) (holding that “panic attacks consisting of anxiety, tightness in chest,” “and heart 21 palpitations” in addition to insomnia, post-traumatic stress disorder, and depression 22 establish “substantial evidence of significant emotional distress”). 23 Kocontes alleges here that he “has continuing anxiety about urinating because he 24 never knows how severe the burning pain will be.” (ECF 1, at 7.) But mere “anxiety” does 25 not rise to the requisite “extreme or severe emotional distress” level, so his intentional- 26 infliction claim against Guimbaolibot fails as well. See Hughes, 46 Cal. 4th at 1051. 27 28 1 D. Leave to Amend 2 “A district court should not dismiss a pro se complaint without leave to amend unless 3 it is absolutely clear that the deficiencies of the complaint could not be cured by 4 amendment.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (quotation marks 5 omitted). Because Kocontes’s Eighth Amendment, California Government Code section 6 845.6, and intentional-infliction claims for damages against the California Correctional 7 Health Care Services are barred, those claims are beyond repair and correspondingly 8 dismissed without leave to amend.2 9 But it is not “absolutely clear” that Kocontes’s intentional-infliction-of-emotional- 10 distress claim against Guimbaolibot is beyond repair, so he may amend his complaint to 11 correct the deficiencies identified in this order by February 14, 2025. If he files an amended 12 complaint, he must replead any claims that he wants this Court to consider. See Lacey v. 13 Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012). The Court “will consider those 14 [original] claims to be waived if not repled.” Id. 15 If Kocontes does not file an amended complaint by that date, his two surviving 16 claims against Guimbaolibot still stand: (1) Eighth Amendment deliberate indifference and 17 (2) California Government Code section 845.6. 18 CONCLUSION 19 Accordingly, the Court: 20 1. GRANTS Kocontes’s motion to proceed IFP. 21 2. DIRECTS the Secretary of the CDCR, or his designee, to collect the $350 22 filing fee from Kocontes’s prison trust account in monthly payments equal to 20% of the 23 preceding month’s income each time the amount in his account exceeds $10, and forward 24 those payments to the Clerk of the Court. 28 U.S.C. § 1915(b)(2). 25 26 27 2 To the extent Kocontes seeks injunctive relief requiring CCHCS to “evaluate whether the scarring inside [his] penis can be treated,” he may amend his complaint to 28 1 3. DISMISSES Kocontes’s Eighth Amendment, California Government Code 2 ||section 845.6, and intentional-infliction-of-emotional-distress claims against defendant 3 || California Correctional Health Care Services without leave to amend. 4 4, DISMISSES Kocontes’s intentional-infliction-of-emotional-distress claim 5 || against Guimbaolibot with leave to amend. If Kocontes would like to amend his complaint 6 ||to address the deficiencies identified in this order, he must do so by February 14, 2025. 7 || Plaintiff's first amended complaint must be complete without reference to his original 8 pleading. See CivLR 15.1(a). Any defendants not named and any claims not realleged in 9 || the amended complaint will be considered waived. See Lacey, 693 F.3d at 928. 10 5. DIRECTS the Clerk of the Court to serve a copy of this order on Jeff 11 ||Macomber, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 12 942883, Sacramento, California 94283-0001. 13 ||Dated: January 3, 2025 14 Z | f 15 Andrew G. Schopler United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 14 oe