2 . . . 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 . 11 ||} HUMBERTO I. MIRANDA, Case No.: 3:19-cv-01605-LAB-RBM

CDCR #AU-3793, .

. Plaintife | REPORT & RECOMMENDATION 13 "| OF U.S. MAGISTRATE JUDGE RE: Vv. 14 (1) GRANTING IN PART AND 15 | RAYMOND MADDEN, Warden; | DENYING IN PART DEFENDANTS? RAMIREZ, Correctional Officer; and 16 || FLORES, Correctional Officer, MOTION TO DISMISS Oe ° PLAINTIFF’S FIRST AMENDED 17 Defendants.) COMPLAINT; AND 18 (2) GRANTING PLAINTIFF'S 19 MOTION FOR LEAVE TO FILE 50 SECOND AMENDED COMPLAINT 21 || (Does. 15 & 22] 9 . 23 OU INTRODUCTION 24 Plaintiff Humberto I. Miranda (“Plaintiff”), a state prisoner proceeding pro se, brings 25 || an action arising under 42 U.S.C. § 1983 (“Section 1983”) related to Eighth Amendment 26 || conditions of confinement claim after wet and heavy objects from the ceiling allegedly fell 27 || on him and his girlfriend in a facility visitation room. The incident occurred while Plaintiff 28 || was a prisoner at Centinela State Prison (“CEN”).

1 On February 8, 2021, Defendants Raymond Madden (“Warden Madden”), 2 ||Correctional Officer Ramirez (“Officer Ramirez”), and Correctional Officer Flores 3 ||C‘Officer Flores”) filed a Motion to Dismiss (“MTD”) Plaintiffs First Amended 4 Complaint. (Doc. 15.) Plaintiff filed his response on April 5, 2021, and Defendants filed 5 reply on April 14, 2021. (Docs. 20, 24.) While the MTD was pending a report and 6 ||recommendation by the undersigned, Plaintiff filed a Motion for Leave to Amend 7 || Complaint (“Motion for Leave”) on April 9, 2021. (Doc. 22.) 8 For the reasons outlined below, the undersigned issues a Report and 9 ||Recommendation as to Defendants’ MTD and Motion for Leave. See 28 □□□□ § 10 || 636(b)(1)(B); CivLR 72.1(c) and 72.3(a). After a thorough review of the pleadings, papers, 11 ||prior orders of the Court, the facts, and applicable law, the undersigned respectfully 12 ||recommends that Defendants’ MTD be GRANTED IN PART AND DENIED IN PART. 13 ||(Doc. 15.) As to Plaintiff's Motion for Leave, the undersigned respectfully recommends 14 || that the motion be GRANTED. (Doc. 22.) 15 Il. PROCEDURAL HISTORY 16 On August 26, 2019, Plaintiff filed a Complaint against Nancy Adam, John Doe, 17 |/Kevin Reilly, Warden Madden, Officer Ramirez, and Officer Flores alleging civil rights 18 || violations arising under Section 1983. (Doc. 1.). Specifically, Plaintiff claimed Eighth 19 |}Amendment violations alleging deliberate indifference towards his conditions of 20 ||confinement and medical needs. (/d.) . 21 On November 4, 2019, the Court granted Plaintiff leave to proceed in forma 22 || pauperis, conducted its initial screening of the Complaint, and dismissed it sua sponte in 23 |\its entirety for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 24 |}1915A(b). (Doc. 5.) The Court granted Plaintiff forty-five days leave to file an amended 25. complaint to address all pleading deficiencies. U/d. at 14.) On January 27, 2020, Plaintiff 26 || filed an Amended Complaint (“FAC”) (Doc. 8) where he renamed the same Defendants, 27 ||realleged both Eighth Amendment claims, sought declaratory relief, compensatory and 28 || punitive damages, and demanded a jury trial. (See Doc. 8 at 23-25.)

1 The Court dismissed Plaintiff's claim for inadequate medical care against all 2 ||Defendants on May 26, 2020. (Doc. 9 at 14.) The Court directed the Clerk to issue a 3 Summons upon Warden Madden, Officer Ramirez, and Officer Flores as to the remaining 4 || Eighth Amendment claim, finding sufficient facts to plausibly allege that these Defendants 5 ||acted with deliberate indifference towards Plaintiff's conditions of confinement. (/d.) 6 ||Now, the instant MTD seeks dismissal of Plaintiff's Eighth Amendment conditions of 7 |{|confinement claim. 8 Ill. FACTUAL BACKGROUND 9 For purposes of the instant Motion, the foregoing facts from the FAC are accepted 10 |/as true. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). 11 i. Allegations in FAC 12 On August 22, 2015, Plaintiff was sitting at a table with his girlfriend Veronica 13 Adame (“Adame”) in CEN’s Facility C visiting room when “wet and heavy objects, water, 14 |) and debri[s] that smelled of mildew fell from the ceiling [striking] both Plaintiff and Adame 15 ||on the top of their heads, neck, back, and shoulders.” (Doc. 8 at 14, {9 13-14.) Plaintiff 16 ||“covered Adame with his body and ushered her under the table” to seek refuge. (d. at 14, 17 15.) Afterward, Plaintiff and Adame observed an 8 x 8-foot hole in the ceiling directly 18 || above where they were sitting. (Ud. at 14,416.) “Their food items, money, and personal 19 || possessions were scattered on the floor and covered in water, ceiling tile, and debri[s].” 20 || (Id. at § 17.) ~— After Plaintiff reported the incident and requested medical aid, Officers Ramirez and 22 |/Flores laughed. (/d. at 17-18, 34-38.) Adame was then escorted to the visiting-room 23 lobby and medical staff was called to “check on [her] injuries.” (dd. at 17-18, { 35.) 24 Additionally, Plaintiff contends Officer Ramirez and Officer Flores were “assigned 25 [the] C-Facility visiting room for at least [ninety] days” before the ceiling collapsed and 26 || during that time the air conditioner “kept shutting do[wn]” causing average temperatures 27 || to reach between 90 to 155 degrees during the summer. (/d. at 15-16, J] 24-26.) After the 28 || air conditioner was reported to be repaired “a leak began to fall in the immediate area where

1 ||... the ceiling collapsed.” (qd. at 16, 927.) Plaintiff, Adame, and “many other inmates 2 visitors” notified Officers Ramirez and Flores about the leak and the possible risk of 3 injury, but both Officers “waived it off as nonsense,” and refused “to [submit] a 4 ||maintenance work order to fix the leak.” (/d. at 16-17, 29-32.) Plaintiff also contends 5 || Officers Ramirez and Flores’ refusal to address and/or report the leak placed him at a 6 || “substantial risk of injury from the date of the notice up to August 22, 2015,” [when] the 7 || ceiling eroded[,] . . . became soaked with water” and “eventually collaps[ed].” □□□□ at 17, |1933.) 9 Plaintiff also alleges that Warden Madden was “well aware of a leak coming from 10 ceiling” after a committee composed of inmate visitors, including Adame, reported 11 ||“[t]his and many other complaints and concerns” directly to him “at or around [thirty] days 12 |) prior to the incident ....” (dd. at 14-15, {J 18-22.) In addition to the foregoing notice, 13 Warden Madden attended a meeting where the committee “notified prison officials of the 14 || leak in the ceiling and the continuing problems with the air conditioners in [the] visiting 15 ||room.” (Id at 15, 921, 17, J 32.) 16 ii. Surviving Cause of Action in FAC □ 17 The remaining claim in the FAC alleges an Eighth Amendment unsafe conditions- 18 || of-confinement cause of action against Warden Madden, Officer Ramirez, and Officer 19 Flores. (Doe. 8 at 23-24, J] 73-74.) Warden Madden is sued in his individual capacity, 20 || with liability being premised upon his responsibility for the operation of CEN and the 21 || welfare and safety of all inmates in his custody. Ud. at 12, 4.) Officers Ramirez and 22 Flores, both CEN correctional officers, are sued in their individual capacities with liability 23 premised upon their assignment to CEN Facility C visiting room, awareness of the leak in 24 || the ceiling, and failure to submit a maintenance request. (/d. at 12-13, § 6-7.) 25 iii. Plaintiffs Prayer for Relief 26 Plaintiff seeks declaratory relief, compensatory and punitive damages, costs, and 27 fees. (Doc. 8 at 24-25, □□ 77-82). This includes compensatory damages in the amount of 28 || $250,000 against all Defendants, jointly and severally; and punitive damages in the amount 4

1 $100,000 against each Defendant. (/d.)

2 IV. LEGAL STANDARD 3 i. Motion to Dismiss 4 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 5 Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. 6 ||P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 932 (9th Cir. 2001). The motion may be 7 || granted only if the complaint lacks a “cognizable legal theory” or sufficient facts to support 8 ||a cognizable legal theory. Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 9 Cir. 2013) Ginternal quotations and citations omitted). Although a complaint need not 10 |} contain detailed factual allegations, it must plead “enough facts to state a claim to relief 11 ||that is plausible on its face.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007). “A 12 claim has facial plausibility when the plaintiff pleads factual content that allows the court 13 ||to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 14 || Asheroft v. Iqbal, 556 U.S. 662, 678 (citing Twombly, 550 U.S. at 556). □ 15 “[A] plaintiffs obligation to provide the ‘ grounds’ of his ‘entitle[ment] to relief 16 ||requires more than labels and conclusions, and a formulaic recitation of the elements of a 17 || cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 18 265, 286 (1986) (alteration in original)). A court need not accept “legal conclusions” 19 true. Igbal, 556 U.S. at 678. □ 20 In deciding a 12(b)(6) motion, “all material allegations of the complaint are accepted 21 true, as well as all reasonable inferences to be drawn from them.” Navarro, 250 F.3d at 22 ||932 (citing Cahill v. Liberty Mut. Ins. Co., 80 F.3d 338 (9th Cir. 1996)). But, “to be entitled 23 ||to the presumption of truth, allegations in a complaint . . . may not simply recite the 24 elements of a cause of action, but must contain sufficient allegations of underlying facts to 25 || give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 26 F.3d 1202, 1216 (9th Cir. 2011). 27 In reviewing the sufficiency of a complaint, the court is limited to the complaint 28 || itself and its attached exhibits, documents incorporated by reference, and matters properly

1 || subject to judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 US. 308, 322- 2 ||23 (2007); see also Inre NVIDIA Corp. Sec. Litig., 768 F.3d 1046, 1051 (9th Cir. 2014). 3 ii. Standard for Pro Se Litigants . 4 _ Where a plaintiff appears in propria persona in a civil rights case, the court must 5 ||construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim- 6 || Panahi v. L.A. Police Dep't, 839 F.2d 621, 623. (9th Cir. 1988). The rule of liberal 7 construction is “particularly important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 8 1258, 1261 (9th Cir. 1992). In giving a liberal interpretation to a pro se civil rights - 9 ||complaint, courts may not “supply essential elements of claims that were not initially pled.” 10 || Ivey v.. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). “Vague 11 |}and conclusory allegations of official participation in civil rights violations are not 12 || sufficient to withstand a motion to dismiss.” Ivey, 673 F.2d at 268 ; See also Jones v. Cmty. 13 ||Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (finding conclusory allegations 14 || unsupported by facts insufficient to state a claim under § 1983). “The plaintiff must allege 15 || with at least some degree of particularity overt acts which defendants engaged in that 16 || support the plaintiffs claim.” Jones, 733 F.2d at 649 (internal quotation omitted). 17 Notably, the court must give a pro se litigant leave to amend his complaint “unless 18 determines the pleading could not possibly be cured by the allegation of other facts.” 19 || Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Thus, before a pro se civil rights 20 ||complaint may be dismissed, the court must provide the plaintiff with a statement of the 21 ||complaint’s deficiencies. Karim-Panahi, 839 F.2d at 623-24. But where amendment of a 22 ||pro se litigant’s complaint would be futile, denial of leave to amend is appropriate. See 23 || James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). 24 || Vv. DISCUSSION 25 Defendants seek to dismiss the remaining cause of action against Warden Madden, 26 Officer Ramirez, and Officer Flores arguing that the FAC fails to state a cause of action 27 under the Eighth Amendment in that a leaking air-conditioning unit is not an objectively 28 ||sufficiently serious harm and also because there are no facts to suggest deliberate .

1 || indifference by any Defendant. (Doc. 15.) Defendants also seek dismissal based upon 2 || qualified immunity grounds. (Doc. 15 at 13-14.) Plaintiff counters that viable claims exist 3 |las Defendants exposed Plaintiff to cruel and unusual punishment by way of unsafe 4 || conditions of confinement and each Defendant acted with deliberate indifference to those 5 conditions. (Doc. 8 at 23-24, 99 73-74.) 6 i. Requirements to State an Eighth Amendment Conditions of Confinement Claim 7 “It is undisputed that the treatment a prisoner receives in prison and the conditions 8 |{under which [the prisoner] is confined are subject to scrutiny under the Eighth 9 || Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 10 U.S. 825, 832 (1994). The Eighth Amendment requires that prison officials take 11 reasonable measures to guarantee the safety and well-being of prisoners. Farmer, 511 U.S. 12 || at 832-833; Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). “To determine whether 13 conditions of [a plaintiff's] confinement constitut[e] cruel and unusual punishment, [a 14 || court] must assess whether [plaintiff] was deprived of the ‘minimal civilized measure of 15 || life’s necessities.’” Frost v. Agnos, 152 F.3d 1124, 1128 (1991) (quoting Wilson v. Seiter, 16 ||501 U.S. 294, 304 (1991)). The Eighth Amendment analysis consists of both an objective 17 || and subjective test. Under the objective test, a plaintiff must allege facts sufficient to 18 plausibly show that he faced conditions posing a “substantial risk of serious harm” to his 19 || health or safety; and under the subjective test, a plaintiff must allege facts demonstrating 20 || that the individual prison official he seeks to hold liable was “deliberately indifferent” to 21 ||those risks. Farmer, 511 U.S. at 837; Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 22 |]2010). 23 a. Objective Test’s Exacerbating Condition Requirement 24 California district courts have held that conditions such as slippery floors, without 25 ||more, “do not state . .. an arguable claim for cruel and unusual punishment.” Jackson v. 26 || State of Ariz., 885 F.2d 639, 641 (9th Cir. 1989), superseded by statute on other grounds 27 \\as stated in Lopez, 203 F.3d at 1130-31. Even in cases involving hazardous conditions 28 || coupled with a prison staff's knowledge and/or failure to repair such condition, to impose

1 || liability under the Eighth Amendment courts generally require an exacerbating condition. 2 || See, e.g, Wallace v. Sherman, 1:20-cv-00213 (EPG\PC), 2020 WL 4193968 (E.D. Cal. 3 July 21, 2020) (dismissing complaint that alleged a leaky roof that prison staff knew of, 4 which caused plaintiff to slip and fall resulting in a head injury, was not an Eighth 5 || Amendment violation). For example, in Osolinski v. Kane, 92 F.3d 934 (9th Cir. 1996), 6 || where an oven door fell off and burned plaintiff because prison officials failed to make 7 ||repairs, the Court noted plaintiff's failure to allege facts demonstrating that he could not 8 protect himself from the danger. (Ud. at 938.) The Court found no Eighth Amendment 9 || violation as the objective test failed and it ultimately reversed and remanded to dismiss the 10 |) case on qualified immunity grounds. (/d. at 939.) 11 An example of an exacerbating condition includes circumstances where a prisoner 2 is ordered to continue operating equipment, despite the prison’s knowledge of its defects 13 |}and/or danger. Morgan v. Morgensen, 465 F.3d. 1041, 1045 (9th Cir. 2006) (finding 14 || prison’s order to work dangerously defective printing press constituted an exacerbating 15 || condition); Hoptowit v. Spellman, 753 F.2d 779 (9th Cir. 1985) (finding inadequate lighting 16 ||exacerbated safety hazards in prison’s occupational areas). Another example of an _17 ||exacerbating condition includes circumstances where a dangerous condition exists, 18 || coupled with past instances of injury involving a handicapped plaintiff. In Frost, where a 19 pretrial detainee who wore a leg cast fell multiple times in a slippery bathroom because 20 || officials denied him a handicapped-accessible shower, the Court held that the plaintiff 21 could state a Section 1983 claim. Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir. 1998). 22 |i The Court reasoned that because plaintiff had fallen and injured himself multiple times 23 || while on crutches, this set of facts was distinguishable from Jackson where slippery floors 24 || by themselves did not constitute cruel and unusual punishment. Jd. 25 || Here, Plaintiff alleges that the ceiling leak posed a danger to himself, Adame, and 26 || other visitors. (Doc. 8.) Although Plaintiff and Adame allegedly suffered injuries because 27 ceiling collapsed above them in the visiting room, the FAC, by itself, fails to show an 28 additional condition that exacerbated the danger of the ceiling leak. (/d) Similar to

1 || Osolinski, the officers in this case had notice of the leaking air conditioning unit, failed to 2 request repairs, and Plaintiff sustained an injury as a result. (Doc. 8 at 13-17, ff 13-14, 29- 3 As in Osolinksi, Plaintiff has not established an additional exacerbating condition, 4 therefore, has failed to demonstrate a substantial risk of serious harm for his Eighth 5 || Amendment claim. Osolinksi, 92 F.3d at 939. 6 Further, this case is distinguishable from Frost. There are no facts in Plaintiff’s FAC 7 ||to suggest that he suffered from any disability or previously sustained injuries from the 8 leaking roof. (Doc. 8); see also Frost, 152 F.3d at 1127, 1129. Plaintiff claims in his 9 || Opposition that Officer Ramirez and Officer Flores specifically assigned him and Adame 10 || to sit underneath the leaking roof. (Doc. 20 at 12-13.) However, because Plaintiff raised 11 ||this fact in his Opposition and not in his FAC, these additional allegations cannot be 12 || considered for purposes of ruling on Defendants’ 12(b)(6) motion to dismiss. Tellabs, Inc., 13 U.S. at 322-23. Because the FAC does not allege an exacerbating condition to 14 |) demonstrate a substantial risk of harm, Plaintiff fails to meet the objective test the Eighth 15 || Amendment requires. Morgensen, 465 F.3d. at 1045; Osolinksi, 92 F.3d at 939. 16 b. Subjective Test’s Deliberate Indifference Requirement 17 To demonstrate deliberate indifference, a plaintiff must allege facts sufficient to 18 || plausibly show that the defendant both knew of and disregarded a substantial risk of serious 19 || harm to his health and safety. Farmer, 511 U.S. at 837. Thus, a plaintiff must allege “the 20 || official [was] both... aware of facts from which the inference could be drawn that a 21 substantial risk of serious harm exist[ed], and [that] he . . . also dr[e]w that inference.” Jd. 22 Here, Plaintiff alleges that Defendants were aware of the ceiling leak because a 23 || visitors’ committee notified Warden Madden of the issue on multiple occasions, including 24 ||a meeting that took place thirty days before the ceiling collapsed on Plaintiff and Adame. 25 || (Doc. 8 at 14-15, qf 18-22; Doc. 9 at 12.) Despite the concerns, Warden Madden allegedly 26 || failed to take immediate and precautionary measures such as ordering the ceiling’s repair. 27 ||(Doc. 8 at 15, 17, 49 21, 32.) Plaintiff also alleges that Officer Ramirez and Officer Flores 28 || were assigned to CEN’s Facility C visiting room for at least ninety days before the incident

1 || and visitors and other inmates put them on notice of the leak. (/d. at 15-16, □□ 24-30.) 2 || Plaintiff contends Officer Ramirez and Officer Flores failed to submit a maintenance 3 || request to repair the leak and waived the August 2015 incident as nonsense. (Doc. 8 at 16- 4 30.; Doc. 9 at 12.) Additionally, Plaintiff alleges both Officers laughed after Plaintiff 5 ||and Adame reported the incident. (Doc. 8 at 17-18, 4 34-38.) Officer Ramirez and Officer 6 ||Flores’ alleged conduct is similar to defendants’ conduct in Robinson v. Prunty, 249 F.3d 7 867 (9th Cir. 2001), where the court found prison officials’ alleged awareness and 8 || indifference to a serious risk of violent outbreaks, coupled with alleged joking, and failure 9 ||to intervene demonstrated deliberate indifference. (Doc. 9 at 13.) Based on the FAC’s 10 || allegations, it plausibly alleges that Defendants knowingly disregarded the ceiling leak and 11 || the risks it posed to inmates seated beneath it. Ud. at 12-13.) However, because the FAC 12 || fails to plausibly satisfy the objective prong of the Eighth Amendment claim, Plaintiff fails 13 state a claim establishing an Eighth Amendment violation for unsafe conditions of 14 |}confinement. See supra pp. 7-9. 15 Based upon the foregoing, the undersigned respectfully recommends that 16 Defendants’ MTD be GRANTED for failure to state an Eighth Amendment claim upon 17 || which relief can be granted. _ 18 ii. Qualified Immunity Defense 19 Qualified immunity shields government officials from liability for civil damages 20 unless their conduct violates clearly established statutory or constitutional rights of which 21 reasonable person would have known. Anderson v. Creighton, 483 U.S. 635, 638-40 22 ||(1987). The U.S. Supreme Court set forth a two-part analysis for determining government 23 || officials’ qualified immunity defense. First, the court must consider whether the facts 24 ||“[t]aken in the light most favorable to the party asserting the injury. . . show [that] the 25 ||[defendant’s] conduct violated a constitutional right].]” Saucier v. Katz, 533 U.S. 194, 201 26 ||(2001); see also Scott v. Harris, 550 U.S. 372, 377 (2007). Secondly, the court must 27 || determine whether that right was clearly established at the time of the challenged conduct. 28 || Katz, 533 U.S. at 201. 10. □

1 Defendants argue they are entitled to qualified immunity because established 2 || preexisting law did not give them “fair warning” that their conduct was unlawful. (Doc. 3 at 13-14.) However, a qualified immunity analysis is premature at this stage as 4 Plaintiff's FAC fails to plausibly allege any constitutional violation. See supra pp. 7-10. 5 || Without a constitutional violation, there is no necessity to inquire whether the right was 6 ||clearly established. Saucier, 533 U.S. at 201; see also County of Sacramento v. Lewis, 523 7 833, 841 (1988) (“[The] better approach to resolving cases in which defense of 8 || qualified immunity is raised is to determine first whether plaintiff has alleged a deprivation 9 || of constitutional right at all.”); Wheeler v. Marengo, 2019 WL 5963914, at *6 (S.D. Cal., 10 || Nov. 13, 2019) (finding that it would be premature to recommend granting or denying a 11 || qualified immunity defense on the merits after recommending granting a motion to dismiss 12 || and granting plaintiff leave to amend); Victoria v. City of San Diego, 326 F Supp.3d 1003 13 |/(2018) (finding that the court was not in a position to analyze the qualified immunity 14 || defense with a particular degree of scrutiny after granting defendant’s motion to dismiss 15 |jand granting plaintiff leave to amend his claims). Based upon the foregoing, the 16 || undersigned respectfully recommends that Defendants’ MTD on qualified immunity 17 || grounds be DENIED WITHOUT PREJUDICE. 18 iii. Plaintiff Motion for Leave to F. ile Second Amended Complaint 19 As stated above, Plaintiff filed a Motion for Leave to file a second amended 20 || complaint after full briefing on Defendants’ MTD. (Doc. 22.)

21 Generally, courts freely grant leave to amend a complaint that has been dismissed. 22 ||Fed. R. Civ. P. 15(a); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 23 || 1401 (9th Cir. 1986). “Leave [to amend] shall be freely given when justice so requires.” 24 || Fed. R. Civ. P. 15(a).’ It “should be granted ‘if it appears at all possible that the plaintiff 25 correct defect.’” Schreiber, 806 F.2d at 1401 (quoting Breier v. N.Cal. Bowling 26 || Proprietors’ Ass’n, 316 F.2d 787, 789-90 (9th Cir. 1963)). Moreover, “[iJn the absence of 27 apparent or declared reason—such as undue delay, bad faith or dilatory motive on the 28 of the movant, repeated failure to cure deficiencies by amendments... , undue.

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1 || prejudice to the opposing party by virtue of allowance of the amendment, futility of 2 |}amendment, etc.—the leave sought should, as the rules require, be ‘freely given.’” Foman 3 ||v. Davis, 371 U.S. 178, 182 (1962). However, “the Ninth Circuit has recognized that 4 || plaintiffs do not enjoy unlimited opportunities to amend their complaints.” Stone v. Conrad _5 || Preby’s, 2013 WL 139939, at *2 (S.D. Cal. Jan. 10, 2013) (citing McHenry v. Renne, 84 6 1172, 1174 (9th Cir. 1996)); see also Lopez, 203 F.3d at 1130. 7 Here, Plaintiff requested to amend complaint to correct any pleading 8 deficiencies. (Doc. 22 at 2.) Based on additional facts alleged in Plaintiff's Opposition to 9 MTD, (Doc. 20), it appears Plaintiff may be able to allege additional facts in an 10 || amended complaint to support his Eighth Amendment claim. See supra pp. 7-9; see also 11 || Broam v. Bogan, 320 F.3d 1023, 1026 (9th Cir. 2003) (noting that facts raised for the first in an opposition to a motion to dismiss should be considered in determining whether 13 ||to grant leave to amend.) Allowing Plaintiff a second' opportunity to file a second 14 ||amended complaint would not cause an undue delay or unduly prejudice the opposing 15 ||party. Therefore, the undersigned recommends that Plaintiff's Motion for Leave to amend 16 ||his complaint be GRANTED. (Doc. 22.) 17 VI. CONCLUSION 18 For the reasons discussed, the undersigned respectfully submits this Report and 19 ||Recommendation to United States District Judge Larry Alan Burns pursuant to 28 U.S.C. 20 11§ 636(b)(1)(B) and Local Civil Rule 72.1(c)(1)(e). For the reasons set forth above, IT IS 21 || HEREBY RECOMMENDED that the Court issue an order approving and adopting this 22 || Report and Recommendation: 23 (1) GRANTING Defendants’ Motion to Dismiss Plaintiffs First Amended 24 Complaint; 25 26 || 27 || On November 4, 2019, the Court gave Plaintiff forty-five days leave to file an amended complaint after 228 dismissing Plaintiff's Complaint sua sponte during an initial screening. (Doc. 5.) Plaintiff filed the FAC on January 27, 2020. (Doc. 8.) 12

1 (2) GRANTING Plaintiff leave to file a second amended complaint; 2 (3) DIRECTING the Clerk of Court to send Plaintiff a blank Civil Rights Act 3 ||42 U.S.C. § 1983 form complaint; 4 (4) DIRECTING Plaintiff to use the blank form complaint by the Clerk of Court, 5 |/to the extent Plaintiff elects to file a second amended complaint. The second amended 6 |)complaint must allege any and all claims against Defendants in one pleading WITHOUT 7 ||reference to any of the superseded pleadings (i.e., Initial Complaint or FAC). See Local 8 || Civil Rule 15.1; and 9 (5) GRANTING Plaintiff through J une 14, 2021 to file a second amended 10 |] Complaint. , 1] It is further ORDERED that that no later than May 12, 2021, any parties to this 12 || action may file written objections to this Report and Recommendation with the Court and 13 serve a copy on all parties. The document should be captioned “Objections to Report and 14 Recommendation.” 15 It is further ORDERED that any reply to the objections shall be filed with the Court 16 || and served on all parties no later than May 26, 2021. The parties are advised that failure 17 || to file objections within the specified time may waive the right to raise those objections on 18 ||appeal of the Court’s Order, See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); 19 || Martinez v. YIst, 951 F.2d 1153, 1156 (9th Cir. 1991). 20 ITISSOORDERED.

21 ||;DATE: April 28, 2021 22 33 AON. RUTH BERMUDEZ MONTENEGRO

UNITED STATES MAGISTRATE JUDGE

24 25 26 27

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