1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ZACHARY NICOLAS ANGEL, Case No. 1:20-cv-01713-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO

RANDOMLY ASSIGN DISTRICT JUDGE TO

13 v. ACTION 14 CALIFORNIA CORRECTIONAL FINDINGS AND RECOMMENDATIONS TO HEALTH CARE SERVICES, et al., DISMISS ACTION, WITH PREJUDICE, FOR 15 FAILURE TO STATE A CLAIM, FAILURE Defendants. TO OBEY COURT ORDER, AND FAILURE 16 TO PROSECUTE 17 (ECF No. 9) 18 FOURTEEN (14) DAY DEADLINE 19 20 I. Background 21 Plaintiff Zachary Nicolas Angel (“Plaintiff”) is a state prisoner proceeding pro se and in 22 forma pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a 23 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 24 On March 24, 2021, the Court issued a screening order granting Plaintiff leave to file a 25 first amended complaint or a notice of voluntary dismissal within thirty (30) days. (ECF No. 9.) 26 The Court expressly warned Plaintiff that the failure to comply with the Court’s order would 27 result in a recommendation for dismissal of this action, with prejudice, for failure to obey a court 28 order and for failure to state a claim. (Id. at 7.) The deadline has expired, and Plaintiff has failed 1 to file an amended complaint or otherwise communicate with the Court. 2 II. Failure to State a Claim 3 A. Screening Requirement 4 The Court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 6 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 7 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 8 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 9 A complaint must contain “a short and plain statement of the claim showing that the 10 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 13 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 14 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 15 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 16 To survive screening, Plaintiff’s claims must be facially plausible, which requires 17 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 18 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 19 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 20 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 21 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 22 B. Plaintiff’s Allegations 23 Plaintiff is currently housed at California State Prison in Corcoran, California where the 24 events alleged in the complaint occurred. Plaintiff names the following defendants: (1) California 25 Correctional Health Care Services, (2) California Department of Corrections and Rehabilitation 26 (“CDCR”), and (3) Nancy Ordonez, medical assistant. 27 Plaintiff alleges medical deliberate indifference for not disclosing possible side effects of 28 medication. Plaintiff alleges: 1 On 10/21/20, Nancy Ordonez, Defendant 3, had a pneumonia vaccine that she said I needed to receive, and that it would be good for me. She did not tell me that 2 there would be any side effects, nor did she tell me that this vaccine was for people 3 60 years of age or older. I’m only 28. I also found out later in my medical paperwork that this was going to be for my Hepatitis C, which she did not tell me 4 either. By failing to tell me the true purpose of this vaccine and its side effects, I had to go through extreme pain and suffered for several days in which my arm 5 swoll up and broke out in a red rash due to an allergic reaction. Defendants 1 and 2, are also responsible, because Nancy Ordonez works for them and they should 6 have trained her to properly inform me of the possible side effects and reaction to 7 the vaccine. My pain and suffering could have been avoided if these mistakes weren’t made. 8 9 (ECF No. 1, p. 3 (unedited text).) 10 Plaintiff alleges his arm was sore and swollen for five days, with the rash on his entire 11 arm. Plaintiff seeks compensation of $50,000. 12 C. Discussion 13 Plaintiff’s complaint fails to state a cognizable claim under 42 U.S.C. § 1983. 14 1. Eleventh Amendment Immunity 15 “The Eleventh Amendment bars suits for money damages in federal court against a state, 16 its agencies, and state officials in their official capacities.” Aholelei v. Dept. of Public Safety, 488 17 F.3d 1144, 1147 (9th Cir. 2007). However, the Eleventh Amendment does not bar suits seeking 18 damages against state officials in their individual capacities. Hafer v. Melo, 502 U.S. 21, 30–31 19 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003). Additionally, the Eleventh 20 Amendment does not bar suits for prospective declaratory or injunctive relief against state 21 officials in their official capacities. Ex Parte Young, 209 U.S. 123, 155–56 (1908); Will v. 22 Michigan Dep't of State Police, 491 U.S. 58, 71 n.10 (1989); Kentucky v. Graham, 473 U.S. 159, 23 167 n.14 (1985); Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007). 24 “California prisons are entitled to Eleventh Amendment immunity.” Lopez v. Wasco State 25 Prison, 2008 WL 5381696, at *4 (E.D. Cal. Dec. 22, 2008) (citing Keel v. California Dep’t of 26 Corr. & Rehab., 2006 WL 1523121, at *2 (E.D. Cal. May 30, 2006), report and recommendation 27 adopted sub nom. Keel v. CDCR, 2006 WL 2501527 (E.D. Cal. Aug. 28, 2006)). The State and 28 arms of the State, which have traditionally enjoyed Eleventh Amendment immunity, are not 1 subject to suit under § 1983 in either federal court or state court.” Howlett v. Rose, 496 U.S. 356, 2 365 (1990). 3 Plaintiff is only seeking money damages. Since the CDCR, the prison, and the 4 departments within the prison are arms of the State, they are immune from suit, and plaintiff fails 5 to state any claims against them. 6 2. Deliberate Indifference to Serious Medical Needs 7 While the Eighth Amendment of the United States Constitution entitles Plaintiff to 8 medical care, the Eighth Amendment is violated only when a prison official acts with deliberate 9 indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th 10 Cir. 2012), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th 11 Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 12 1091, 1096 (9th Cir. 2006). Plaintiff “must show (1) a serious medical need by demonstrating 13 that failure to treat [his] condition could result in further significant injury or the unnecessary and 14 wanton infliction of pain,” and (2) that “the defendant’s response to the need was deliberately 15 indifferent.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). Deliberate indifference is 16 shown by “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need, 17 and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 18 1096). The requisite state of mind is one of subjective recklessness, which entails more than 19 ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks omitted); Wilhelm, 20 680 F.3d at 1122. 21 A serious medical need exists if the failure to treat the condition could result in further 22 significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091, 23 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of 24 facts from which the inference could be drawn that a substantial risk of serious harm exists, and 25 he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a 26 defendant is liable if he knows that plaintiff faces “a substantial risk of serious harm and 27 disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. “It is enough 28 that the official acted or failed to act despite his knowledge of a substantial risk of harm.” Id. at 1 842. 2 In applying this standard, the Ninth Circuit has held that before it can be said that a 3 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 4 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 5 cause of action.” Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v 6 Gamble, 429 U.S. 97, 105–06 (1976)). “[A] complaint that a physician has been negligent in 7 diagnosing or treating a medical condition does not state a valid claim of medical mistreatment 8 under the Eighth Amendment. Medical malpractice does not become a constitutional violation 9 merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of 10 Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish 11 deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 12 (9th Cir. 1990). Additionally, a prisoner’s mere disagreement with diagnosis or treatment does 13 not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 14 A difference of opinion between an inmate and prison medical personnel—or between 15 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 16 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 17 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir 2004). Additionally, “a complaint that a 18 physician has been negligent in diagnosing or treating a medical condition does not state a valid 19 claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 20 become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 21 106. 22 Plaintiff's allegations fail to show an Eighth Amendment violation. At most Plaintiff's 23 allegation that he should not have received vaccine shows a misdiagnosis or disagreement with 24 the diagnosis which is not sufficient to state a cognizable claim. See Wilhelm v. Rotman, 680 25 F.3d 1113, 1123 (9th Cir. 2012) (a misdiagnosis does not state a cognizable claim for deliberate 26 indifference.); Sanchez v. Vild, 891 F.2d at 242 (an inmate’s disagreement with diagnosis or 27 treatment does not support a claim of deliberate indifference). Plaintiff's allegation that he 28 suffered side effects is also insufficient to state a claim. Fratus v. Dayson, No. 2:20-CV-0354 DB 1 P, 2021 WL 598650, at *5 (E.D. Cal. Feb. 16, 2021) (fail to state a claim for injection given 2 against his will, was not the correct medication to treat his condition, and caused him to suffer 3 serious side effects.) See Franklin v. State of Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) 4 (holding, in part, that improper medical treatment that caused “soreness and swelling” merely 5 rose to the level of negligence and not deliberate indifference to a serious medical problem under 6 the Eighth Amendment). Here, Plaintiff has merely alleged negligence at best by Defendant 7 Ordonez. It appears that the vaccine was given to treat Plaintiff’s Hepatitis. Plaintiff must plead 8 more than a mere disagreement with the chosen course of medical treatment. Plaintiff must 9 sufficiently allege facts to support that Defendant Ordonez knew of and disregarded a “substantial 10 risk of serious harm” in giving Plaintiff the vaccine. 11 3. State Law Claims 12 Plaintiff may be attempting to allege negligence. 13 Under 28 U.S.C. § 1367(a), in any civil action in which the district court has original 14 jurisdiction, the “district courts shall have supplemental jurisdiction over all other claims that are 15 so related to claims in the action within such original jurisdiction that they form part of the same 16 case or controversy under Article III of the United States Constitution,” except as provided in 17 subsections (b) and (c). The Supreme Court has stated that “if the federal claims are dismissed 18 before trial, . . . the state claims should be dismissed as well.” United Mine Workers of Am. v. 19 Gibbs, 383 U.S. 715, 726 (1966). 20 Although the Court may exercise supplemental jurisdiction over state law claims, Plaintiff 21 must first have a cognizable claim for relief under federal law. 28 U.S.C. § 1367. 22 Further, the Government Claims Act requires exhaustion of Plaintiff's state law tort claims 23 with the California Victim Compensation and Government Claims Board, and Plaintiff is required 24 to specifically allege compliance in his complaint. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 25 201, 208–09 (Cal. 2007); State v. Superior Court of Kings Cty. (Bodde), 32 Cal. 4th 1234, 1239 26 (Cal. 2004); Mabe v. San Bernardino Cty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th 27 Cir. 2001); Mangold v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995); 28 Karim–Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627 (9th Cir. 1988). Plaintiff has not 1 alleged he has complied with the Government Claims Act for his state law claim. 2 III. Failure to Prosecute and Failure to Obey a Court Order 3 A. Legal Standard 4 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 5 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 6 within the inherent power of the Court.” District courts have the inherent power to control their 7 dockets and “[i]n the exercise of that power they may impose sanctions including, where 8 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 9 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 10 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 11 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 12 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 13 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 14 (dismissal for failure to comply with court order). 15 In determining whether to dismiss an action, the Court must consider several factors: 16 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 17 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 18 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 19 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 20 B. Discussion 21 Here, Plaintiff’s first amended complaint is overdue, and he has failed to comply with the 22 Court’s orders. The Court cannot effectively manage its docket if Plaintiff ceases litigating his 23 case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal. 24 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 25 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 26 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 27 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 28 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 1 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 2 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 3 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 4 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 5 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 6 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s March 24, 2021 screening 7 order expressly warned Plaintiff that his failure to file an amended complaint would result in a 8 recommendation of dismissal of this action, with prejudice, for failure to obey a court order and 9 for failure to state a claim. (ECF No. 9, p. 7.) Thus, Plaintiff had adequate warning that dismissal 10 could result from his noncompliance. 11 Additionally, at this stage in the proceedings there is little available to the Court that 12 would constitute a satisfactory lesser sanction while protecting the Court from further 13 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this 14 action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is 15 likely to have no effect given that Plaintiff has ceased litigating his case. 16 IV. Conclusion and Recommendation 17 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 18 district judge to this action. 19 Further, the Court finds that dismissal is the appropriate sanction and HEREBY 20 RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim 21 pursuant to 28 U.S.C. § 1915A, for failure to obey a Court order, and for Plaintiff’s failure to 22 prosecute this action. 23 These Findings and Recommendation will be submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 25 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 26 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 27 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 28 specified time may result in the waiver of the “right to challenge the magistrate’s factual 1 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 2 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3

IT IS SO ORDERED.

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5 Dated: May 10, 2021 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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