1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ISRAEL BUSTAMONTE, Case No. 22-cv-04725-VKD

8 Plaintiff,

ORDER OF SERVICE; CASE

9 v. MANAGEMENT SCHEDULE;

INSTRUCTIONS TO CLERK

10 T CASTILLON, et al.,

Defendants. 11

12 13 Pro se plaintiff Israel Bustamonte, a state prisoner, filed this civil rights action against a 14 correctional officer and medical staff at the Salinas Valley State Prison (“SVSP”), where he is 15 currently incarcerated. Dkt. No. 1. The Court screened the complaint and found it was deficient 16 because the claim of deliberate indifference against defendants Bermudez and Johnson was not 17 adequately pled, did not explain what injunctive relief he was seeking, and did not state on what 18 basis he was suing Defendants. The Court gave Mr. Bustamonte leave to amend to correct these 19 deficiencies. Dkt. No. 10. Mr. Bustamonte filed an amended complaint. Dkt. No. 11. 20 The amended complaint no longer includes defendants Bermudez and Johnson, it clearly 21 indicates that Mr. Bustamonte is suing defendants in their individual capacities, id. ¶ 19, and it 22 includes no request for injunctive relief, id. ¶ 83. Mr. Bustamonte has addressed the deficiencies 23 identified in his earlier pleading. 24 I. BACKGROUND 25 Mr. Bustamonte is currently confined at SVSP. Dkt. No. 11 ¶ 1. He brings this action 26 against Correctional Officer T. Castillon for injuries he suffered during a “riot/melee” among 27 inmates on September 28, 2021, in one of the yards at SVSP. Id. ¶¶ 13, 20-24. Mr. Bustamonte 1 injuries. Id. ¶¶ 14-16, 26-51. With respect to this medical claim, Mr. Bustamonte names the 2 following as defendants: F. Ssempewa (RN), Phuc Le (RN), F. Montegrande (RN), L. Muriith 3 (RN), and Dr. Michael Moller. Id. ¶¶ 10, 14-15. 4 Mr. Bustamonte alleges that as soon as the riot broke out, he attempted to move away from 5 the area where the riot was taking place. Id. ¶¶ 20-22. Officers on the scene discharged pepper 6 smoke which caused him to cough and impaired his vision. Id. ¶ 22. He also heard loud bangs 7 from officers discharging their weapons. Id. When Mr. Bustamonte heard an officer close by yell, 8 “get down,” he turned his back to the officer to comply while keeping both arms up in the air. Id. 9 ¶ 23. Mr. Bustamonte claims that he then “out of nowhere lost conscious[ness] and all went 10 dark,” and that the next thing he recalls is being placed in the back of an ambulance. Id. ¶ 24. Mr. 11 Bustamonte alleges that Officer Castillon, who was the gun tower officer for D-Yard 5 block at 12 the time, deliberately shot him on the right side of his face with a rubber bullet from the tower 13 window, which was approximately 30 to 40 feet away. Id.; see also id. ¶ 57. An unidentified 14 officer noticed the wound on Mr. Bustamonte’s face and called for medical attention. Id. ¶ 26. 15 Defendants Nurse Bermudez and Nurse Ssempewa arrived. Id. Mr. Bustamonte says that Nurse 16 Bermudez only directed that he be taken to SVSP’s Critical Treatment Center after several inmates 17 yelled at the officers and nurses that he needed medical treatment at a hospital. Id. ¶ 27. 18 Mr. Bustamonte required treatment at the hospital where it was determined from a CT scan 19 and X-rays that he had suffered head injuries including bruising, several fractures, and a 20 laceration. Id. ¶¶ 29-34. After several hours at the hospital, he was transported back to SVSP. Id. 21 ¶¶ 34. 22 Mr. Bustamonte claims he experienced severe pain, vomiting, dizziness, and disorientation 23 in the days that followed his injuries. Id. ¶ 36. On October 1, 2021, he saw defendant Nurse 24 Montegrande for a follow-up. Id. ¶ 37. Mr. Bustamonte informed Nurse Montegrande that he was 25 in severe pain, it hurt to chew food and swallow water, and that the pain medication was not 26 sufficient. Id. ¶ 38. Nurse Montegrande informed him that he would receive surgery soon, but 27 that he would not be given more drugs (other than the “T-3s” already prescribed) because of Mr. 1 ordered. Id. ¶ 40. 2 On October 4, 2021, Mr. Bustamonte saw defendant Nurse Ssempewa. Id. ¶ 41. Mr. 3 Bustamonte informed Nurse Ssempewa that he had severe pain on the right side of his face, he 4 could not chew regular food, and that he had not yet received the “soft food diet”; he also asked 5 about his scheduled surgery. Id. Nurse Ssempewa replied that he could do nothing about the food 6 diet, that he would not provide “a fix to druggies,” and that the surgery was scheduled. Id. ¶ 42. 7 On October 5, 2021, Mr. Bustamonte saw defendant Nurse Phuc Le, whom he informed 8 that he was in severe pain, the vision in his right eye was blurry, and that he had lost some hearing 9 in his right ear. Id. ¶ 44. He also informed Nurse Le that he had not eaten in the last few days and 10 had not yet received his soft food diet. Id. ¶ 45. Nurse Le informed him that the soft food order 11 was there and that he should be getting his surgery within a couple of days. Id. Mr. Bustamonte 12 was sent back to his cell in severe pain. Id. ¶ 46. 13 On or about October 6, 2021, Mr. Bustamonte saw defendant Nurse Muriith. Id. ¶ 47. He 14 informed Nurse Muriith that he had not eaten a proper meal in over a week and that he was feeling 15 dizzy and disoriented; he requested a soft food diet meal. Id. Nurse Muriith informed Mr. 16 Bustamonte that he was there to perform tests prior to surgery, and that any other medical issues 17 had to be taken up with his primary care provider (“PCP”). Id. Mr. Bustamonte was sent back to 18 his cell still in severe pain and worsening condition. Id. ¶ 48. 19 A few days later, Mr. Bustamonte saw his PCP, defendant Dr. Michael Moller. Id. ¶ 49. 20 Mr. Bustamonte informed Dr. Moller that he was in severe pain, losing vision and hearing on his 21 right side, and had dizzy periods and severe headaches. Id. He also informed Dr. Moller that he 22 had not yet received a soft food diet and been eating two slices of bread soaked in water each day. 23 Id. Dr. Moller informed him that a soft food diet had been recommended and that he would 24 approve surgery for Mr. Bustamonte, after which, he would consider whether other medical 25 procedures were needed. Id. ¶ 50. Mr. Bustamonte was sent back to his cell. Id. 26 Mr. Bustamonte alleges that he was denied any surgery for his severe injuries for over a 27 year and that he never received a soft food diet, not even after he received surgery. Id. at ¶ 51. He 1 II. STANDARD OF REVIEW 2 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 3 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 4 § 1915A(a). A court may dismiss a case filed without the payment of the filing fee whenever it 5 determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief 6 may be granted; or (iii) seeks monetary relief against a defendant who is immune from such 7 relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). In conducting its review, the Court must identify any 8 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon 9 which relief may be granted, or seek monetary relief from a defendant who is immune from such 10 relief. See 28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings must be liberally construed. See 11 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988); Jackson v. Carey, 353 F.3d 12 750, 757 (9th Cir. 2003). 13 Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges, or 14 immunities secured by the Constitution and laws’ of the United States.” Wilder v. Virginia Hosp. 15 Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of 16 substantive rights, but merely provides a method for vindicating federal rights elsewhere 17 conferred. Graham v. Connor, 490 U.S. 386, 393-94 (1989). To state a claim under § 1983, a 18 plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of 19 the United States was violated, and (2) that the alleged violation was committed by a person acting 20 under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 21 Additionally, a complaint must include facts that are “more than labels and conclusions, 22 and formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. 23 Twombly, 550 U.S. 554, 555 (2007). “Threadbare recitals of the elements of a cause of action, 24 supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 25 (2009). Only plausible claims for relief will survive a motion to dismiss. Id. at 679. A claim is 26 plausible if the facts pled permit the court to draw a reasonable inference that the defendant is 27 liable for the alleged misconduct. Id. A plaintiff does not have to provide detailed facts, but the 1 accusation.” Id. at 678. 2 III. DISCUSSION 3 Mr. Bustamonte contends that his rights under the Eighth Amendment were violated due to 4 the deliberate and intentional use of excessive force by Officer Castillon, Dkt. No. 11 at ¶¶ 57-64, 5 and the deliberate indifference to his serious medical needs by the medical staff defendants, id. ¶¶ 6 69-79. The Court considers these claims below. 7 A. Excessive Force 8 Whenever prison officials stand accused of using excessive force in violation of the Eighth 9 Amendment, the core judicial inquiry is whether force was applied in a good-faith effort to 10 maintain or restore discipline, or maliciously and sadistically to cause harm. Hudson v. 11 McMillian, 503 U.S. 1, 6-7 (1992); Whitley v. Albers, 475 U.S. 312, 320–21 (1986). Mr. 12 Bustamonte alleges that Officer Castillon deliberately shot him in the face, causing severe injury, 13 even though Mr. Bustamonte was in the process of complying with orders to “get down” and 14 presented no threat at the time. See supra at 2; Dkt. No. 11 at ¶ 57. These allegations, liberally 15 construed, are sufficient to state an excessive force claim against Officer Castillon. 16 B. Deliberate Indifference to Serious Medical Needs 17 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 18 Amendment’s proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 19 97, 104 (1976). A determination of “deliberate indifference” involves an examination of two 20 elements: the seriousness of the prisoner’s medical need, and the nature of the defendant’s 21 response to that need. See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992). A “serious” 22 medical need exists if the failure to treat a prisoner’s condition could result in further significant 23 injury or the “unnecessary and wanton infliction of pain.” Id. at 1059 (citing Estelle, 429 U.S. at 24 104). With regard to the second prong, a prison official is deliberately indifferent if he knows that 25 a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take 26 reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official 27 must not only “be aware of facts from which the inference could be drawn that a substantial risk of 1 Bustamonte’s allegations are sufficient to state an Eighth Amendment deliberate indifference 2 claim against Nurse Ssempewa, Nurse Le, Nurse Montegrande, Nurse Muriith, and Dr. Michael 3 Moller based on their knowledge that Mr. Bustamonte was in severe pain and unable to eat and 4 their failure to take reasonable steps to abate the risk of harm, including promptly treating his 5 injuries with surgery. 6 IV. CONCLUSION 7 For the foregoing reasons and for good cause shown, the Court orders as follows: 8 1. The following defendants shall be served at Salinas Valley State Prison: 9 a. Correctional Officer T. Castillon 10 b. Nurse F. Ssempewa, R.N. 11 c. Nurse Phuc Le, R.N. 12 d. Nurse F. Montegrande, R.N. 13 e. Nurse L. Muriith, R.N. 14 f. Dr. Michael Moeller 15 Service on the listed defendants shall proceed under the CDCR e-service program for civil 16 rights cases from prisoners in CDCR custody. In accordance with the program, the Clerk of the 17 Court is directed to serve on CDCR via email the following documents: the operative complaint 18 and any attachments thereto, Dkt. No. 11, this order of service, and a CDCR Report of E-Service 19 Waiver form. The Clerk shall also include a magistrate judge jurisdiction consent/declination 20 form. The clerk shall mail a copy of this Order to plaintiff. 21 No later than 40 days after service of this order via email on CDCR, CDCR shall provide 22 the Court a completed CDCR Report of E-Service Waiver advising the Court which defendant(s) 23 listed in this order will be waiving service of process without the need for service by the United 24 States Marshal Service (USMS) and which defendant(s) decline to waive service or could not be 25 reached. CDCR also shall provide a copy of the CDCR Report of E-Service Waiver to the 26 California Attorney General’s Office which, within 21 days, shall file with the Court a waiver of 27 service of process for the defendant(s) who are waiving service. 1 defendant who has not waived service according to the CDCR Report of E-Service Waiver a 2 USM-205 Form. The Clerk shall provide to the USMS the completed USM-205 forms and copies 3 of this order, the summons and the operative complaint for service upon each defendant who has 4 not waived service. The Clerk also shall provide to the USMS a copy of the CDCR Report of E- 5 Service Waiver. 6 2. All communications from Mr. Bustamonte to the Court must be served on 7 defendants, or defendants’ counsel once counsel has been designated, by mailing a true copy of 8 the document to defendants or defendants’ counsel. 9 3. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. 10 No further court order under Federal Rule of Civil Procedure 30(a)(2) or Local Rule 16-1 is 11 required before the parties may conduct discovery. 12 4. It is Mr. Bustamonte’s responsibility to prosecute this case. Mr. Bustamonte must 13 keep the Court informed of any change of address and must comply with the Court’s orders in a 14 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 15 pursuant to Federal Rule of Civil Procedure 41(b). 16 5. No later than ninety-one (91) days from the filing date of this order, defendants 17 may file a motion for summary judgment or other dispositive motion with respect to the claims in 18 the complaint found to be cognizable above. 19 a. Any motion for summary judgment shall be supported by adequate factual 20 documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil 21 Procedure. Defendants are advised that summary judgment cannot be granted, nor 22 qualified immunity found, if material facts are in dispute. If any defendant is of the 23 opinion that this case cannot be resolved by summary judgment, he shall so inform the 24 Court prior to the date the summary judgment motion is due. 25 b. In the event defendants file a motion for summary judgment, the Ninth 26 Circuit has held that, as a pro se prisoner, Mr. Bustamonte must be concurrently 27 provided the appropriate warnings under Rand v. Rowland, 154 F.3d 952, 963 (9th 1 6. Mr. Bustamonte’s opposition to any dispositive motion shall be filed with the Court 2 and served on defendants no later than twenty-eight (28) days from the date defendants’ motion is 3 filed. The Court advises Mr. Bustamonte to read Rule 56 of the Federal Rules of Civil Procedure 4 and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment 5 |} must come forward with evidence showing triable issues of material fact on every essential 6 || element of his claim). Mr. Bustamonte is cautioned that failure to file an opposition to 7 defendants’ motion for summary judgment may be deemed to be a consent by Mr. Bustamonte to 8 the granting of the motion, and granting of judgment against Mr. Bustamonte without a trial. See 9 Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges v. Lewis, 18 F.3d 651, 10 || 653 (9th Cir. 1994). 11 7. Defendants shall file a reply brief no later than fourteen (14) days after Mr. 12 || Bustamonte’s opposition is filed. 13 8. The motion shall be deemed submitted as of the date the reply brief is due. No 14 || hearing will be held on the motion unless the Court so orders at a later date. 3 15 9. Extensions of time must be filed no later than the deadline sought to be extended a 16 and must be accompanied by a showing of good cause. 3 17 10. The clerk shall terminate the following defendants who are no longer parties to this 18 action: R.N. C. Bermudez, R. N. Lamphuc, and R.N. K Johnson. See Ferdik v. Bonzelet, 963 F.2d 19 1258, 1262 (9th Cir. 1992) (defendants not named in an amended complaint no longer 20 defendants). 21 IT IS SO ORDERED. 22 Dated: May 26, 2023 □□ 28

VIRGINIA K. DEMARCHI

24 United States Magistrate Judge 25 26 27 28