1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN CARLOS GARCIA AYALA, No. 2:21-cv-02186-DJC-CKD 12 Plaintiff, 13 v. ORDER FINDING SERVICE APPROPRIATE

AS TO CERTAIN CLAIMS AND FINDINGS

14 GARY REDMAN, et al., AND RECOMMENDATIONS TO DISMISS

REMAINING CLAIMS

15 Defendants 16 17 Plaintiff is a former county prisoner proceeding pro se and in forma pauperis with an 18 action filed pursuant to 42 U.S.C. § 1983. By order filed October 11, 2023, plaintiff was granted 19 leave to file a third amended complaint “limited to claims arising from plaintiff’s incarceration at 20 Amador County Jail on October 21, 2021.” ECF No. 64 at 3. Plaintiff has now filed a third 21 amended complaint that is before the court for screening. 22 I. Screening Requirement 23 As plaintiff was previously advised, the court is required to screen complaints brought by 24 prisoners seeking relief against a governmental entity or officer or employee of a governmental 25 entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the 26 prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon 27 which relief may be granted, or that seek monetary relief from a defendant who is immune from 28 such relief. 28 U.S.C. § 1915A(b)(1), (2). 1 II. Allegations in the Third Amended Complaint 2 On October 23, 2021, plaintiff was a pretrial detainee in custody at the Amador County 3 Jail. Defendants Creach, LaBarbera, and Owens were escorting plaintiff to the C-Block, 4 otherwise known as “the hole.” ECF No. 68. “Plaintiff informed the officers that he was at risk 5 of retaliation if he was housed in C-Block….” ECF No. 68 at 2. Defendants Creach and 6 LaBarbera then started running towards plaintiff and threw him onto the floor. Id. at 3. 7 Defendant Creach grabbed plaintiff by the head and ears while defendant LaBarbera grabbed 8 plaintiff’s left arm and twisted it. Id. Once plaintiff was on the ground on his stomach, 9 defendants Creach and LaBarbera placed extreme pressure on his back with their knees. Id. 10 Defendant Owens folded plaintiff’s legs and put all of her weight on them. Plaintiff had a prior 11 stomach surgery and felt “a lot of burning sharp pain” while the officers were on top of him. Id. 12 at 3. Defendants knew he had stomach surgery because they had escorted him to the medical 13 section. Id. “Plaintiff told the defendants that he was injured but they just ignored everything he 14 was telling them while putting on the handcuffs.” Id. As a result of defendants’ use of force, 15 plaintiff “suffers pain in the bone on the side of his knee every single day and he also suffers pain 16 from his hernias.” Id. at 4. 17 III. Legal Standards 18 As plaintiff was a pretrial detainee, the Fourteenth Amendment standard applies to the 19 claim of deliberate indifference to plaintiff’s serious medical needs. See Castro v. County of Los 20 Angeles, 833 F.3d 1060, 1067–68 (9th Cir. 2016) (en banc). The Ninth Circuit has clarified that, 21 in the context of pretrial detainees protected by the Fourteenth Amendment, deliberate 22 indifference is interpreted solely from an objective perspective, and has no subjective component. 23 Castro, 833 F.3d at 1069–70. Thus, in order to state a claim, plaintiff must allege that: “(i) the 24 defendant made an intentional decision with respect to the conditions under which the plaintiff 25 was confined; (ii) those conditions put the plaintiff at a substantial risk of suffering serious harm; 26 (iii) the defendant did not take reasonable available measures to abate that risk, even though a 27 reasonable official in the circumstances would have appreciated the high degree of risk 28 involved—making the consequences of the defendant's conduct obvious; and (iv) by not taking 1 such measures, the defendant caused the plaintiff's injuries.” Gordon v. County. of Orange, 888 2 F.3d 1118, 1125. As such, the plaintiff must prove “more than negligence but less than subjective 3 intent—something akin to reckless disregard.” Gordon, 888 F.3d at 1124-25 (quoting Daniels v. 4 Williams, 474 U.S. 327, 330-31 (1996)) (internal quotation marks omitted). 5 IV. Analysis 6 The complaint sufficiently alleges a Fourth and Fourteenth Amendment excessive force 7 claim against defendants Creach, LaBarbera, and Owens pursuant to 42 U.S.C. § 1983 and 28 8 U.S.C. § 1915A(b). If the allegations of the amended complaint are proven, plaintiff has a 9 reasonable opportunity to prevail on the merits of this claim. Therefore, the court will direct 10 plaintiff to complete the documents required to serve defendant Owens with the third amended 11 complaint.1 12 Plaintiff has failed to state a separate claim for relief based on defendants’ deliberate 13 indifference to his serious medical needs. Plaintiff alleges that defendants failed to respond to his 14 request for medical attention and complaints of pain following their use of force against him. 15 However, plaintiff has not alleged that this delay in treatment caused any further injury to him. 16 See Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (prisoner alleging delay of medical 17 treatment evinces deliberate indifference must show delay led to further injury); see also Shapley 18 v. Nev. Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (“mere delay of surgery, 19 without more, is insufficient to state a claim of deliberate medical indifference”). Plaintiff’s 20 allegations sound more in negligence which is not legally sufficient to state a deliberate 21 indifference claim under the Fourteenth Amendment. Gordon, 888 F.3d at 1125. Based on this 22 analysis, the undersigned recommends dismissing the Fourteenth Amendment deliberate 23 indifference claim against defendants without further leave to amend as it does not appear to the 24 court that the identified defects are curable. See Klamath-Lake Pharm. Ass’n v. Klamath Med. 25 Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983) (holding that while leave to amend shall be 26 freely given, the court does not have to allow futile amendments). 27 1 Defendants Creach and LaBarbera have already filed an answer to the third amended complaint. 28 See ECF No. 69. 1 V. Plain Language Summary for Pro Se Party 2 The following information is meant to explain this order in plain English and is not 3 intended as legal advice. 4 The court has reviewed the allegations in your third amended complaint and determined 5 that some state cognizable claims and others do not. The court is ordering service on the 6 excessive force claim against defendants Creach, LaBarbera, and Owens. To have defendant 7 Owens served with the amended complaint, you must complete and return the attached Notice of 8 Submission of Documents form. 9 The undersigned is recommending that the Fourteenth Amendment deliberate indifference 10 claim against defendants Creach, LaBarbera, Owens, and Does 1-10 be dismissed without further 11 leave to amend because there is no allegation that the delay in treating your injuries caused 12 further harm. Defendants’ negligence in failing to respond to your medical needs is not sufficient 13 to state a constitutional claim for relief. 14 If you disagree with this recommendation to dismiss the deliberate indifference claim 15 against defendants, you may explain why it is not the correct outcome within 14 days from the 16 date of this order. Label your explanation as “Objections to Magistrate Judge’s Findings and 17 Recommendations.” 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The Clerk of Court shall update plaintiff’s address of record to 1397 E. San Antonio 20 Street, San Jose, CA 95116. 21 2. Service is appropriate for the excessive force claim against defendants Creach, 22 LaBarbera, and Owens. 23 3. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an 24 instruction sheet and a copy of the third amended complaint filed January 2, 2024. 25 4. Within thirty days from the date of this order, plaintiff shall complete the attached 26 Notice of Submission of Documents and submit the following documents to the court: 27 a. The completed Notice of Submission of Documents; 28 b. One completed summons; 1 c. One completed USM-285 form for defendant Owens; and 2 d. Two copies of the endorsed third amended complaint filed January 2, 2024. 3 5. Plaintiff need not attempt service on defendant Owens and need not request waiver of 4 || service. Upon receipt of the above-described documents, the court will direct the United States 5 || Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 6 || without payment of costs. 7 IT IS FURTHER RECOMMENDED that plaintiff's Fourteenth Amendment deliberate 8 || indifference claim against defendants Creach, LaBarbera, Owens, and Does 1-10 be dismissed 9 || without leave to amend for failing to state a claim upon which relief may be granted. 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 12 | after being served with these findings and recommendations, any party may file written 13 || objections with the court and serve a copy on all parties. Such a document should be captioned 14 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 15 || objections shall be served and filed within fourteen days after service of the objections. The 16 || parties are advised that failure to file objections within the specified time may waive the right to 17 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 18 | Dated: January 31, 2024 / □□□ / 4 ly a 19 CAROLYNK. DELANEY 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 12/ayal2186.1.amd+F&R 27 28

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JUAN CARLOS GARCIA AYALA, No. 2:21-cv-02186-DJC-CKD 12 Plaintiff, 13 v. NOTICE OF SUBMISSION OF DOCUMENTS 14 GARY REDMAN, et al., 15 Defendants. 16

17 Plaintiff hereby submits the following documents in compliance with the court's order 18 filed _____________________ :

19 ____ completed summons form ____ completed USM-285 form 20 ____ copies of the ___________________ Amended Complaint 21

22 DATED:

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24 ________________________________ Plaintiff 25 26 27 28