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9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA

11 ) 12 MARK LANDEROS, N O . S A C V 2 3 - 0 1 1 9 3 - J L S (KS) ) 13 Plaintiff, ) ) 14 v. MEMORANDUM AND ORDER ) 15 ) DISMISSING SECOND AMENDED ) 16 SANTA ANA JAIL, et al., COMPLAINT WITH LEAVE TO AMEND ) 17 Defendants. ) ) 18 _________________________________ 19 20 INTRODUCTION 21 22 On November 20, 2023, the Court issued a Memorandum and Order (“Order”) 23 dismissing Plaintiff’s First Amended Complaint with leave to amend. (Dkt. No. 9.) Plaintiff 24 timely filed his Second Amended Complaint (‘SAC”) on December 7, 2023. (Dkt. No. 9.) 25 Although the Court finds that the SAC fails to state a cognizable claim for relief against 26 Defendant, the Court will grant Plaintiff one final opportunity to amend. 27 \\ 28 \\ 1 LEGAL STANDARD 2 3 Under Federal Rule of Civil Procedure (“Rule”) 12(b)(6), a trial court may dismiss a 4 claim sua sponte and without notice “where the claimant cannot possibly win relief.” Omar 5 v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987); see also Baker v. Director, U.S. 6 Parole Comm’n, 916 F.2d 725, 726 (D.C. Cir. 1990) (adopting Ninth Circuit’s position in 7 Omar and noting that in such circumstances, a sua sponte dismissal “is practical and fully 8 consistent with plaintiffs’ rights and the efficient use of judicial resources”). In determining 9 whether a complaint should be dismissed at screening, the Court applies the standard of Rule 10 12(b)(6): “A complaint must contain sufficient factual matter, accepted as true, to state a claim 11 to relief that is plausible on its face.” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) 12 (internal quotation omitted). Therefore, a plaintiff’s factual allegations must be sufficient for 13 the court to “draw the reasonable inference that the defendant is liable for the misconduct 14 alleged.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011) (internal quotation omitted); 15 see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (“Factual allegations must be 16 enough to raise a right to relief above the speculative level on the assumption that all of the 17 complaint’s allegations are true.”). 18 19 When a plaintiff appears pro se in a civil rights case, courts must construe the pleadings 20 liberally and afford the plaintiff the benefit of any doubt. Akhtar v. Mesa, 698 F.3d 1202, 1212 21 (9th Cir. 2012); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro 22 se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be 23 held to less stringent standards than formal pleadings drafted by lawyers.”). However, in 24 giving liberal interpretation to a pro se complaint, the court may not supply essential elements 25 of a claim that were not initially pled, Byrd v. Maricopa Cnty. Sheriff’s Dep’t, 629 F.3d 1135, 26 1140 (9th Cir. 2011), and the court need not accept as true “allegations that are merely 27 conclusory, unwarranted deductions of fact, or unreasonable inferences,” Sprewell v. Golden 28 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 1 ALLEGATIONS OF THE SECOND AMENDED COMPLAINT 2 3 Plaintiff avers that his “second amended complaint is to clarify any misconception by 4 the court from the plaintiff that this § 1983 suit is not being pursued merely as a means to 5 monetary gain but as a plea to the court to take action(s) against the defendant to properly 6 become diligent and active in providing medical treatment for a serious and debilitating disease 7 that causes unnecessary and wanton infliction of pain known as Hepatitis C.” (Dkt. No. 10 at 8 1.) Plaintiff further avers that his “contention is not whether or not the defendant . . . provides 9 [him] with the new generation of DAA drugs but that the defendant would make an effort to 10 actively treat [his] condition and cease ignoring this disease that carries the same debilitating 11 effects as HIV and is just as slow in its destruction of the human liver and/or cirrhosis.” (Id.) 12 13 Next, Plaintiff alleges that he has been “singled-out and ignored by the defendant and 14 their contracted medical provider called Wellpath” because two other inmates incarcerated at 15 the same facility and who were also diagnosed with Hepatitis C “have been receiving regular 16 treatments for well over two years of their confinement.” (Id. at 2-3.) Plaintiff further alleges 17 that “[s]ince the date of June 20, 2023[,] I have only been sent out of the facility once for initial 18 testing to which the jail (defendant) advised me that they would send me again for further 19 analysis” and that “[i]t was not until the filing of this lawsuit that motivated the defendant to 20 begin and initialize that testing for possible treatment.” (Id. at 3.) Plaintiff alleges that 21 “[s]ubsequent inmate requests, medical requests, and grievances have fallen to deaf ears and I 22 continue to remain without any [s]ort of treatment either in-house or with a contracted medical 23 facility” despite Defendant facility being “well-aware of my diagnosis.” (Id. at 3.) 24 25 Furthermore, Plaintiff alleges that “[a]ccording to the Santa Ana [P]olice Jail handbook, 26 in section Medical (page 14) it states, ‘inmates will have access to medical care within the 27 facility’” and that “‘serious medical conditions may be transported to a contracted facility.’” 28 (Id.) And “in the Title 15 Minimum Standards for Local Detention Facilities by BSCC 1 California, Article II Medical/Mental Health Services, section § 1208 access to treatment, 2 declares ‘. . . assessment and treatment shall be performed by either licensed health 3 professionals or persons operating under the authority and direction of licensed health 4 personnel.’” (Id. at 3-4.) Plaintiff avers that “[t]he defendant fails to fulfill these directives as 5 well as their contracted medical provider, Wellpath” and that while “[i]t may well be that the 6 contracted medical provider, Wellpath is responsible for any inadequate care and concern[,] it 7 is ultimately the Santa Ana Police Jail that must insure proper follow-up of the submitted 8 medical requests and the defendant has knowingly dismissed grievances I have submitted 9 regarding my condition.” (Id. at 4.) 10 11 Finally, Plaintiff avers that “[b]ecause sufficient documentation was provided with the 12 first revised amended claim sent to the court it can be well established that the defendant knew 13 full well that I have been suffering with Hepatitis C since 2007.” (Id. at 5.) Thus, “[t]here are 14 sufficient facts that show that, the defendant is aware of my serious medical needs and is 15 deliberately indifferent to those needs.” (Id. (internal citations and quotations omitted).) 16 17 DISCUSSION 18 19 First, Plaintiff fails to state a claim under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 20 (1978). A claim against a municipal entity requires the plaintiff to show that a constitutional 21 violation was committed pursuant to a “formal governmental policy or a longstanding practice 22 or custom which constitutes the standard operating procedure of the local government entity.” 23 Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (internal quotation omitted); Monell, 24 436 U.S. at 694; City of Canton v. Harris, 489 U.S. 378, 385 (1989). In addition, a plaintiff 25 must show that the policy was “(1) the cause in fact and (2) the proximate cause of the 26 constitutional deprivation.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 27 \\ 28 \\ 1 Plaintiff alleges that “[a]ccording to the Santa Ana [P]olice Jail handbook, in section 2 Medical (page 14) it states, ‘inmates will have access to medical care within the facility’” and 3 that “‘serious medical conditions may be transported to a contracted facility.’” (Dkt. No. 10 4 at 3.) Plaintiff further alleges that “in the Title 15 Minimum Standards for Local Detention 5 Facilities by BSCC California, Article II Medical/Mental Health Services, section § 1208 6 access to treatment, declares ‘. . . assessment and treatment shall be performed by either 7 licensed health professionals or persons operating under the authority and direction of licensed 8 health personnel.’” (Id. at 3-4.) These allegations fail to show that Defendant facility 9 committed a constitutional violation pursuant to a “formal governmental policy or a 10 longstanding practice or custom which constitutes the standard operating procedure of the 11 local government entity.” Gillette, 979 F.2d at 1346. Rather, Plaintiff alleges that Defendant 12 facility’s violations of its policies are the cause in fact and proximate cause of his constitutional 13 deprivations. Trevino, 99 F.3d at 918. As such, Plaintiff’s allegations fall short of stating a 14 claim under Monell. 15 16 Additionally, the Court finds that Plaintiff’s SAC fails to state a deliberate indifference 17 claim. Plaintiff states that he is a pretrial detainee (see Dkt. No. 10 at 2), thus his claim of 18 deliberate indifference is analyzed as a Due Process violation under the Fourteenth 19 Amendment. Lopez v. Nev. ex rel. Nev. Dep’t of Corr., No. 2:21-cv-01161-ART-NJK, 2023 20 U.S. Dist. LEXIS 174820, at *10-11 (D. Nev. Sep. 29, 2023) (citing Horton v. City of Santa 21 Maria, 915 F.3d 592, 599 (9th Cir. 2019)). A pretrial detainee’s Fourteenth Amendment claim 22 for deliberate indifference requires a showing that there was “a substantial risk of serious harm 23 to the plaintiff that could have been eliminated through reasonable and available measures that 24 the officer did not take, thus causing injury that the plaintiff suffered.” Lopez, 2023 U.S. Dist. 25 LEXIS 174820, at *11 (quoting Horton, 915 F.3d at 602). 26 27 Plaintiff alleges that he has been “singled-out and ignored by the defendant and their 28 contracted medical provider called Wellpath” because two other inmates incarcerated at the 1 same facility and who were also diagnosed with Hepatitis C “have been receiving regular 2 treatments for well over two years of their confinement.” (Dkt. No. 10 at 2-3.) Plaintiff further 3 alleges that “[s]ince the date of June 20, 2023[,] I have only been sent out of the facility once 4 for initial testing to which the jail (defendant) advised me that they would send me again for 5 further analysis” and that “[i]t was not until the filing of this lawsuit that motivated the 6 defendant to begin and initialize that testing for possible treatment.” (Id. at 3.) While Plaintiff 7 may not agree with the treatment he has been provided, the Court cannot deduce from the facts 8 alleged that Defendant facility has been deliberately indifferent to Plaintiff’s medical needs. 9 See Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (finding that a mere difference 10 of opinion on medical treatment is not enough to establish deliberate indifference so long as 11 the care provided was medically acceptable); Estelle v. Gamble, 429 U.S. 97, 105 (1976) 12 (finding that the inadvertent or negligent failure to provide adequate medical care does not 13 itself state a claim under Section 1983). Thus, because Plaintiff fails to allege facts 14 demonstrating that there exists a substantial risk of serious harm that Defendant facility failed 15 to eliminate via reasonable and available measures, Plaintiff’s conclusory allegations are 16 insufficient to state a deliberate indifference claim. Lopez, 2023 U.S. Dist. LEXIS 174820, at 17 *11. 18 19 To the extent Plaintiff avers that Defendant facility violated his equal protection rights 20 under the Fourteenth Amendment, Plaintiff fails to state an equal protection claim. “To state 21 a claim under § 1983 for a violation of the Equal Protection Clause of the Fourteenth 22 Amendment[,] plaintiff must show that the defendant[] acted with an intent or purpose to 23 discriminate against [him] based on membership in a protected class.” Furnace v. Sullivan, 24 705 F.3d 1021, 1030 (9th Cir. 2013) (internal quotation and citation omitted). Here, Plaintiff 25 has not alleged facts to plausibly show that Defendant facility or any individual acted with 26 discriminatory intent. Id.; see also Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) 27 (“Intentional discrimination means that a defendant acted at least in part because of a plaintiff’s 28 protected status.”); Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000) 1 (explaining that to succeed on a Section 1983 equal protection claim, the plaintiff must prove 2 that the defendants acted in a discriminatory manner and that the discrimination was 3 intentional). Nor has Plaintiff alleged that he is a member of a protected class or a “class of 4 one” that “has been intentionally treated differently from others similarly situated and that 5 there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 6 528 U.S. 562, 564 (2000); see also Towery v. Brewer, 672 F.3d 650, 660 (9th Cir. 2012) (“The 7 class-of-one doctrine does not apply to forms of state action that by their nature involve 8 discretionary decision-making based on a vast array of subjective, individualized 9 assessments.”) Thus, Plaintiff’s allegations are insufficient to state an equal protection claim. 10 11 Finally, Plaintiff asserts that “[b]ecause sufficient documentation was provided with the 12 first revised amended claim sent to the court[,] it can be well established that the defendant 13 knew full well that I have been suffering with Hepatitis C since 2007” and thus, “[t]here are 14 sufficient facts that show that, the defendant is aware of my serious medical needs and is 15 deliberately indifferent to those needs.” (Dkt. No. 10 at 5 (internal citation and quotation 16 omitted).) However, in its previous Order, the Court instructed Plaintiff that “the Second 17 Amended Complaint . . . shall be complete in itself”; that “[i]t shall not refer in any manner to 18 Plaintiff’s earlier pleadings”; and that any “claims that are not expressly included in the 19 Second Amended Complaint shall be deemed abandoned.” (Dkt. No. 9 at 10.) As such, 20 Plaintiff’s reliance on his previous pleading is improper. 21 22 Despite the identified deficiencies in the SAC, the Court will grant Plaintiff one final 23 opportunity to amend. Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (finding that leave 24 to amend us appropriate “unless it is absolutely clear that the deficiencies of the complaint 25 could not be cured by amendment”). In the Third Amended Complaint, Plaintiff must allege 26 sufficient facts showing that Defendant’s actions were pursuant to a policy, practice, or custom 27 and that the policy, practice, or custom in question was the cause in fact and proximate cause 28 of Defendant’s deliberate indifference. Additionally, Plaintiff must allege facts showing that 1 there exists a substantial risk of serious harm that Defendant facility failed to eliminate via 2 reasonable and available measures. 3 4 CONCLUSION 5 6 For the reasons stated above, the Second Amended Complaint is dismissed with leave 7 to amend. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from 8 the date of this Memorandum and Order within which to file a Third Amended Complaint. In 9 any amended complaint, Plaintiff shall cure the defects described above. 10 11 Plaintiff shall not include new defendants or new allegations that are not reasonably 12 related to the claims asserted in the original Complaint. Further, the Third Amended 13 Complaint, if any, shall be complete in itself and shall bear both the designation “Third 14 Amended Complaint” and the case number assigned to this action. It shall not refer in any 15 manner to Plaintiff’s earlier pleadings. Any claims that are not expressly included in the 16 Third Amended Complaint shall be deemed abandoned. 17 18 In any amended complaint, Plaintiff may not rely on conclusory allegations and 19 formulaic recitations of applicable law. Plaintiff shall also make clear the nature and 20 grounds for his claims, specifically identify the defendants he maintains are liable for each 21 claim, and clearly and concisely explain the factual and legal basis for their liability. Plaintiff 22 is strongly encouraged to utilize the Central District’s standard civil rights complaint form 23 when filing any amended complaint. 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ l Plaintiff's failure to timely comply with this Order may result in a recommendation 2 dismissal. If Plaintiff no longer wishes to pursue this action, in whole or in part, he 3 ||may voluntarily dismiss it, or any portion of it, by filing a signed document entitled 4 || “Notice of Dismissal” in accordance with Federal Rule of Civil Procedure 41(a)(1). 5 6 7 8 || DATE: December 20, 2023

10 KAREN L. STEVENSON

CHIEF U.S. MAGISTRATE JUDGE

12 13 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT 14 || INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH 15 AS WESTLAW OR LEXIS. 16 17 18 19 20 21 22 23 24 25 26 27 28