Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Lance DUPARD, Case No.: 26-cv-03221-WQH-DEB Booking No. 25754224, 12 ORDER (1) GRANTING MOTION Plaintiff, 13 TO PROCEED IN FORMA v. PAUPERIS AND (2) SCREENING 14 PRO SE § 1983 COMPLAINT C. COSIO, Sheriff Deputy, 15 Defendant. (ECF Nos. 1, 2) 16 17 HAYES, Judge: 18 In this civil-rights suit filed under 42 U.S.C. § 1983, Plaintiff Lance Wilson Dupard, 19 proceeding pro se while housed at the George Bailey Detention Facility (“GBDF”), claims 20 a San Diego County Sheriff Deputy violated several of his constitutional rights when he 21 handcuffed Dupard during a housing unit laundry exchange on April 29, 2026. (ECF No. 22 1 at 3–8.) Dupard did not pay the filing fee but instead has filed a motion to proceed in 23 forma pauperis (“IFP”) under 28 U.S.C. § 1915(a). (ECF No. 2.) 24 As explained below, the Court GRANTS Dupard’s IFP motion and SCREENS his 25 Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A(b). The Court finds Dupard 26 adequately alleges an excessive force claim against Defendant Cosio in Count One. But 27 the Court finds he fails to state any plausible claim for relief in Counts Two and Three, 28 1 which miscellaneously allege violations related to retaliation, free speech, race 2 discrimination, and “personal injury.” (ECF No. 1 at 3, 7, 8.) Therefore, the Court 3 ORDERS Dupard to either file an Amended Complaint that addresses the pleading 4 deficiencies discussed below, or a Notice of Intent to Proceed with the excessive force 5 claim alleged in Count One of his current Complaint. 6 I. MOTION TO PROCEED IFP 7 Anyone instituting a civil action in a district court of the United States must typically 8 pay a filing fee of $405—consisting of a $350 statutory fee plus an additional $55 9 administrative fee—although the administrative fee does not apply to persons granted leave 10 to proceed IFP. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District 11 Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a 12 plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP. See 13 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 14 “While the previous version of the IFP statute granted courts the authority to waive 15 fees for any person ‘unable to pay[,]’ . . . the PLRA [Prison Litigation Reform Act] 16 amended the IFP statute to include a carve-out for prisoners.” Hymas v. U.S. Dep’t of the 17 Interior, 73 F.4th 763, 767 (9th Cir. 2023). Namely, “if a prisoner brings a civil action or 18 files an appeal in forma pauperis, the prisoner ‘shall be required to pay the full amount of 19 a filing fee.’” Id. (quoting 28 U.S.C. § 1915(b)(1)). Section 1915(b) “provides a structured 20 timeline for collecting this fee.” Id. (citing 28 U.S.C. § 1915(b)(1)-(2)). First, prisoners 21 must submit a “certified copy of the[ir] trust fund account statement (or institutional 22 equivalent) for . . . the 6-month period immediately preceding the filing of the complaint.” 23 28 U.S.C. § 1915(a)(2). Next, the Court assesses an initial payment of 20% of the greater 24 of (a) “the average monthly deposits to the prisoner’s account” or (b) “the average monthly 25 balance in the prisoner’s account for the 6-month period immediately preceding the filing 26 of the complaint.” See 28 U.S.C. §§ 1915(b)(1) & (4); Bruce v. Samuels, 577 U.S. 82, 84 27 (2016). Unless the prisoner has no assets, prisoners who proceed IFP must pay the initial 28 1 partial assessed fee and whatever balance remains in installments regardless of whether 2 their case is ultimately dismissed. 28 U.S.C. § 1915(b)(1) & (2); Bruce, 577 U.S. at 84. 3 Dupard has provided a trust account statement and certificate from GBDF showing 4 he had an average monthly balance of $22.00 during the 6-month period preceding the 5 filing of his Complaint, average monthly deposits of $22.00, and an available balance of 6 $0.08 at the time of filing. (ECF No. 2 at 4, 6.) The Court, therefore, finds Dupard cannot 7 pay any initial filing fee, grants his IFP motion, and orders payment of the entire fee balance 8 in installments. See 28 U.S.C. § 1915(b)(2); Taylor v. Delatoore, 281 F.3d 844, 850 (9th 9 Cir. 2022) (“[U]nder [28 U.S.C. § 1915(b)(4)’s] safety-valve provision, ‘[i]n no event shall 10 a prisoner be prohibited from bringing a civil action ... for the reason that the prisoner has 11 no assets and no means by which to pay the initial partial filing fee.’”). 12 II. SCREENING 13 A. Legal Standard 14 Because Dupard was imprisoned or detained at the time of filing and is proceeding 15 IFP, his Complaint requires preliminary screening pursuant to 28 U.S.C. § 1915(e)(2) and 16 § 1915A(b). “On review, the court shall . . . dismiss the complaint, or any portion of the 17 complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may 18 be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 19 Olivas v. Nevada ex rel. Dep’t of Corr., 856 F.3d 1281, 1283 (9th Cir. 2017) (quoting 28 20 U.S.C. § 1915A(b)). “The standard for dismissal for prisoner claims at screening is the 21 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” 22 Long v. Sugai, 91 F.4th 1331, 1336 (9th Cir. 2024) (citing Watison v. Carter, 668 F.3d 23 1108, 1112 (9th Cir. 2012)); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) 24 (Section 1915A screening “incorporates the familiar standard applied in the context of 25 failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”). 26 Federal Rule of Civil Procedure 8 “prescribes the information a plaintiff must 27 present about the merits of his claim at the outset of litigation.” Berk v. Choy, 607 U.S. 187, 28 193 (2026). Together Rules 8 and 12(b)(6) require a complaint to “contain sufficient factual 1 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 2 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 3 570 (2007)).1 Detailed factual allegations are unnecessary, but “[t]hreadbare recitals of the 4 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 5 Id. Dismissal “under Rule 12(b)(6) is proper when the complaint either (1) lacks a 6 cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal 7 theory.” Valame v. Trump, 157 F.4th 1172, 1173 (9th Cir. 2025) (per curiam) (citing 8 Somers v. Apple, Inc. 729 F.3d 953, 959 (9th Cir. 2013)). 9 B. Plaintiff’s Allegations 10 In his first cause of action, Dupard alleges that, on April 29, 2026, as he “was being 11 escorted to processing pending disciplinary action, Officer Cosio became irate and started 12 squeezing, twisting, and pulling [Dupard’s] arm when [he] was already placed in handcuffs 13 14 15 16 17 18 19 20 21 22 1 “Courts must consider the complaint in its entirety,” including “documents incorporated into the complaint by reference” to be part of the pleading when determining whether the plaintiff has stated a 23 claim upon which relief may be granted. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ. 24 P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all 25 purposes.”). Though resolution of a motion to dismiss under Rule 12(b)(6) is normally confined to the allegations stated in the complaint, a court “may also ‘consider [1] materials that are submitted with and 26 attached to the complaint’; [2] judicial notice of matters of public record’; and [3] unattached evidence on which the complaint necessarily relies if: [a] the complaint refers to the document; [b] the document is 27 central to the plaintiff’s claim; and [c] no party questions the authenticity of the document.’” Beverly Oaks Physicians Surgical Ctr., LLC v. Blue Cross & Blue Shield of Ill., 983 F.3d 435, 439 (9th Cir. 2020) 28 1 tightly. So [Dupard] tried to pull away from [Cosio’s] grip because [his] blood flow was 2 cutting off and it felt like [he] was going to pass out.” (ECF No. 1 at 3.) 3 Dupard further alleges that “[o]nce placed in the processing cell Officer Cosio was 4 twisting [his] wrist backwards forcefully where [he] had to plead with [] Sargeant Mendiola 5 [] to have [Mendiola] take the cuffs off [him] in Cosio’s stead.” Id. 6 Dupard references a GBDF disciplinary report, which he attached to this first claim 7 saying: “Please see: Dis[ci]plinary Report Attached.” Id. 8 In turn, the disciplinary report, apparently drafted by Officer Cosio, states as follows: 9 At approximately 2030 hours, I was assisting House 3A with laundry exchange. Before Incarcerated Persons (IP) were let out of their cell, they were 10 all instructed multiple times to bring one blanket on their person and leave 11 their second blanket inside their cell.

12 After IPs were let out of their cell as they were walking out of A module, I 13 noticed Dupard, Lance BN 25754224 carrying a blanket while another blanket was wrapped around his waist. I informed Dupard to give me one of his 14 blankets. Dupard complied and handed one blanket to me. Dupard was 15 concerned that he would not get his blanket back and I informed Dupard I would put back in his cell. Dupard then became uncooperative and yelled at 16 me and called me a “bitch, bitch ass hoe, and a punk ass hoe.” I then told 17 Dupard to turn around and put his hands behind his back. Dupard complied. I then placed Dupard into handcuffs and Deputy Valenzuela #4802, and I 18 escorted him to processing. While escorting Dupard to processing he once 19 again became boisterous and yelled, “Shut your bitch ass voice up, ill [sic] fuck your bitch.” 20 21 When I arrived at processing, Dupard continued yelling at me and pulled away from my grasp causing me to lose my grip. I then placed my right hand on 22 Dupard’s right elbow and left hand on Dupard’s left bicep. Dupard offered no 23 resistance. I then continued my escort and advised Dupard if he pulled away from my grasp again, he would be placed on the floor. 24 25 Dupard was then placed into a single cell in processing. Before taking the handcuffs off, I attempted to give Dupard instructions on what to do when I 26 take the handcuffs off, but he was yelling over my instructions. Sergeant 27 28 1 Mendiola #3740 and Deputy Hirt #4914 relieved me and took the handcuffs off Dupard without incident. 2 3 After the cell door closed, Dupard told me, “Your mom raised a real bitch, fucking faggot.” 4 5 Id. at 4. 6 The report further indicates that “Nurse #6468 was notified about the lockdown.” Id. 7 at 5. Dupard was charged with the following violations: “101: Disrespect to staff[,] 103: 8 Threaten/ assault staff /inmate,” and “105 Boisterous activities.” Id. 9 Dupard’s second cause of action alleges violations of the protection against “racial 10 discrimination” and the guarantee of “free speech.” Id. at 7. In this second count, Dupard 11 states he “wasn’t the only speaking insults to” Defendant Cosio, but he “was the only one 12 escorted to processing.” Id. Because the other detainees “were white and Hispanic,” and 13 Dupard “[i]dentif[ies] as African American,” Dupard “believe[s] [Cosio] singled [him] out 14 due to [his] race and ethnicity.” Id. Dupard comments that Cosio “failed to mention within 15 the disciplinary report his repeated taunts and laughter after placing [Dupard] in the 16 processing cell.” Id. Dupard adds that “Sgt. Mendiola had to relieve Cosio of his duties 17 because of the distress and anguish that he observed of” Dupard while “Cosio was twisting 18 [Dupard’s] arm and wrist to the point of pain during the process of escorting [Dupard] to 19 the cell.” Id. 20 Dupard alleges Cosio’s conduct “is not normal corrections officer practice per 21 training[.] [T]hey are not given the liberty to assault nor injure any inmate so long as the 22 inmate is in compliance which [Dupard]” alleges he “was due to being placed in handcuffs 23 with no resistance.” Id. Dupard adds that he “pulled away from [Cosio’s] grip because [he] 24 was honestly in pain and at that point in fear of [his] life.” Id. (citing “Floyd v. Chauvin”).2 25 26 27 2 The Court understands this as a reference to the widely followed Minnesota case in which a viral video depicted Derek Chauvin, a white Minneapolis police officer, killing George Floyd, a Black man, on May 28 1 Finally, a third cause of action alleges “personal injury.” Id. at 8. There Dupard 2 alleges he was “never seen by medical” staff “d[e]spite multiple requests to be seen . . . for 3 [his] injuries sustained in [his] wrist and arm.” Id. at 8. While Dupard acknowledges he 4 was given his medication “around midnight” that night, he states the attending “nurse told 5 [him] that [he] would have to put in a medical request to be seen by a doctor.” Id. Per 6 Dupard, he ”filed multiple request[s] with no response.” Id. 7 Dupard seeks $13,750 in compensatory and punitive damages from Defendant Cosio 8 Id. at 10. 9 C. Discussion 10 The Court finds Plaintiff Dupard’s Complaint contains excessive force allegations 11 involving Defendant Cosio sufficient to survive the “low threshold” set for sua sponte 12 screening. Plaintiff’s remaining claims, however, fail to state any plausible claim for relief 13 and are subject to dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) 14 for the reasons explained below. 15 1. Excessive Force Claim 16 In Count One, Dupard alleges Officer Cosio violated the Eighth Amendment when 17 he “became irate and started squeezing, twisting, and pulling [Dupard’s] arm when [he] 18 was already placed in handcuffs tightly. So [Dupard] tried to pull away from [Cosio’s] grip 19 because [his] blood flow was cutting off and it felt like [he] was going to pass out.” (ECF 20 No. 1 at 3.) Dupard further alleges that “[o]nce placed in the processing cell Officer Cosio 21 was twisting [his] wrist backwards forcefully where [he] had to plead with” another 22 corrections officer to have the cuffs removed. Id. 23 Generally, the Eighth Amendment’s prohibition of “cruel and unusual punishments” 24 applies only “after conviction and sentence.” Graham, 490 U.S. at 393 & n.6. It appears 25 26 27 time. See generally State v. Chauvin, 989 N.W.2d 1, 13–15 (Minn. Ct. App. 2023) (affirming Chauvin’s conviction for second-degree unintentional murder). 28 1 Dupard, housed in a county jail at the time, was a pretrial detainee at the time of his asserted 2 injury. Pretrial detainees’ “rights arise under the Due Process Clause of the Fourteenth 3 Amendment”3; they “are accorded no rights under the Eighth Amendment.” Lee v. City of 4 Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (citations omitted). To state an excessive 5 force claim, “a pretrial detainee must show only that the force purposely or knowingly used 6 against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396– 7 97 (2015). 8 Liberally construed, Dupard’s claim of being subject to Officer Cosio’s squeezing, 9 twisting, and pulling of handcuffs that were already tight along with the twisting of his 10 wrists forcefully backwards states a cognizable claim of excessive force. (See ECF No. 1 11 at 3.) To be sure, the excessive force inquiry involves “careful attention to the facts and 12 circumstances of each particular case.” Graham, 490 U.S. at 396. Those circumstances 13 include “the relationship between the need for the use of force and the amount of force 14 used; the extent of the plaintiff ’s injury; any effort made by the officer to temper or to limit 15 the amount of force; the severity of the security problem at issue; the threat reasonably 16 perceived by the officer; and whether the plaintiff was actively resisting.” Kingsley, 576 17 U.S. at 397. While it’s true that Dupard appears to admit making antagonizing comments 18 to Officer Cosio, taking his allegations as true at this stage, his Complaint has “sufficient 19 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 20 556 U.S. at 678 (citation and internal quotation marks omitted). Notably, Dupard stresses 21 that “Cosio was twisting [Dupard’s] arm and wrist to the point of pain during the process 22 of escorting [Dupard] to the cell.” (ECF No. 1 at 7.) And where Dupard acknowledges he 23 once pulled away from Cosio’s grip, he alleges he did so “because [he] was honestly in 24 25 26 27 3The Fourteenth Amendment provides that the State shall not “deprive any person of life, liberty or property, without due process of the law; nor deny to any person within its jurisdiction the equal protection 28 1 pain and at that point in fear of [his] life.” Id. Otherwise, the Complaint alleges that Dupard 2 was “in compliance” and remained “placed in handcuffs with no resistance.” Id. 3 The excessive force claim as pleaded therefore surpasses §§ 1915(e)(2) and 4 1915A(b)’s initial screening threshold. 5 2. Retaliation and Free Speech Claims 6 Dupard alleges that Cosio’s conduct also constituted “retaliation” and “free speech 7 [violations].” (ECF No. 1 at 3, 7.) 8 As to retaliation and free speech, Dupard has failed to satisfy the Rule 8 pleading 9 standard and fails to allege facts sufficient to support a plausible claim for relief on those 10 grounds. “Prisoners have a First Amendment right to file grievances against prison 11 officials,” Watison, 668 F.3d at 1114, and retaliation against a prisoner for filing grievances 12 is an independent constitutional violation. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 13 2009). “Within the prison context, a viable claim of First Amendment retaliation entails 14 five basic elements: (1) [a]n assertion that a state actor took some adverse action against 15 an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 16 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 17 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 18 567–68 (9th Cir. 2005) (footnote omitted). 19 Here, Dupard fails to allege any facts in support of any of the five elements. Notably, 20 as to engagement in protected conduct, Dupard claims to have been engaged in nothing 21 more than “speaking insults to” Defendant Cosio. (ECF No. 1 at 7.) If Dupard wishes to 22 proceed with a First Amendment retaliation claim, he must set forth factual allegations 23 identifying what action Defendant Cosio took which he contends was retaliatory and the 24 protected activity which triggered the retaliation. See Wood v. Yordy, 753 F.3d 899, 905 25 (9th Cir. 2014) (“We have repeatedly held that mere speculation that defendants acted out 26 of retaliation is not sufficient.” (citations omitted)); Watison, 668 F.3d at 1116–17 27 (retaliation claim insufficient where plaintiff, inter alia, “failed to allege that the 28 harassment” was “connected to [plaintiff’s] filing of . . . grievance”). 1 The First Amendment retaliation claim in the Complaint is dismissed sua sponte 2 pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) under Rule 8 and for failure to state a 3 claim. Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. 4 3. Race Discrimination Claim 5 Dupard further alleges that Cosio’s conduct constituted “racial discrimination” 6 based on Defendant Cosio’s decision to place Cosio in disciplinary processing even while 7 there were other prisoners of different races who also insulted Cosio. (ECF No. 1 at 7.) As 8 to this claim, Dupard also fails to allege facts sufficient to support a plausible claim for 9 relief. Since Dupard is unrepresented, this Court construes his claim broadly, construing it 10 as one brought under the Equal Protection Clause. Nevertheless, the fact that Dupard is 11 African American, and other prisoners insulting Cosio were white and Hispanic, by itself 12 does not suffice to plead a plausible Equal Protection claim. A § 1983 Equal Protection 13 claim requires that a plaintiff “allege facts plausibly showing that the defendants acted with 14 an intent or purpose to discriminate against [him] based upon membership in a protected 15 class.” Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013) 16 (citation omitted); see also Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994) 17 (“Intentional discrimination means that a defendant acted at least in part because of a 18 plaintiff’s protected status.”); Fields v. Legacy Health Sys., 413 F.3d 943, 955 (9th Cir. 19 2005) (identifying “race, alienage, national origin” as examples of characteristics protected 20 by the Equal Protection Clause). 21 Here, the mere mention that Dupard, who is African American, “wasn’t the only one 22 speaking insults to” Cosio, (ECF No. 1 at 7), does not amount to a plausible factual 23 allegation that Cosio intentionally discriminated against Dupard based on his race 24 especially where Dupard does not allege any more specific actions by others or provide 25 additional context. “Mere indifference to the effects of a decision on a particular class does 26 not give rise to an equal protection claim,” “and conclusory statements of bias do not” 27 plausibly set forth such a claim. Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th 28 Cir. 2005) (citations omitted); see also Washington v. Villaneaux, No. 2:23-CV-09836- 1 CBM-MAA, 2025 WL 2989488, at *19 (C.D. Cal. Aug. 12, 2025), r. & r. adopted sub 2 nom. Washington v. Villanueva, No. 2:23-CV-09836-CBM (MAA), 2025 WL 2986670 3 (C.D. Cal. Oct. 22, 2025) (recommending dismissal of Equal Protection claim where, 4 “[b]eyond Plaintiff’s assertion that Plaintiff is Black and Muslim . . . , he advance[d] no 5 factual allegation that any Defendant made decisions about him based on those 6 classifications.”). Plaintiff’s equal protection claim is dismissed sua sponte pursuant to 28 7 U.S.C. § 1915A for failure to state a claim. Wilhelm, 680 F.3d at 1121; Iqbal, 556 U.S. at 8 679. 9 4. Inadequate Medical Care Claim 10 While not explicitly alleged as an independent constitutional cause of action, Dupard 11 also alleges he did not receive medical attention despite (1) Cosio’s indication he contacted 12 Nurse #6468 and (2) Dupard’s statement that he requested attention when he received 13 medication the night of his alleged injury. (ECF No. 1 at 5, 8.). Prisoners bringing claims 14 of deliberate indifference to a serious “may do so under the Eighth Amendment’s Cruel 15 and Unusual Punishment Clause or, if not yet convicted, under the Fourteenth 16 Amendment’s Due Process Clause.” Castro v. County of Los Angeles, 833 F.3d 1060, 17 1067–68 (9th Cir. 2016) (en banc) (citation omitted). Under either clause, a plaintiff must 18 show that the prison officials acted with “deliberate indifference.” Id. at 1068; see 19 generally Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (noting that for 20 sentenced prisoners, “[t]he government has an ‘obligation to provide medical care for those 21 whom it is punishing by incarceration,’ and failure to meet that obligation can constitute 22 an Eighth Amendment violation cognizable under § 1983.” (quoting Estelle v. Gamble, 23 429 U.S. 97, 103–05 (1976))). 24 But to plead a claim under § 1983, a plaintiff must allege that there is an actual 25 connection or link between the actions of a defendant and the constitutional deprivations 26 alleged to have been suffered by the plaintiff. See Monell v. Dep’t of Social Servs., 436 27 U.S. 658 (1978). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 28 deprivation of a constitutional right, within the meaning of section 1983, if he does an 1 affirmative act, participates in another’s affirmative acts, or omits to perform an act which 2 he is legally required to do that causes the deprivation of which complaint is 3 made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). In turn, a § 1983 action 4 premised on violation of the Fourteenth Amendment for inadequate medical care requires 5 allegations that each defendant acted with deliberate indifference to the plaintiff’s serious 6 medical needs. Castro v. County of Los Angeles, 833 F.3d 1060, 1067–68 (9th Cir. 7 2016) (en banc). 8 The test for deliberate indifference has two parts. First, a plaintiff must plead “a 9 serious medical need by demonstrating that failure to treat a prisoner’s condition could 10 result in further significant injury or the unnecessary and wanton infliction of pain.” Jett v. 11 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation marks omitted). Second, 12 a plaintiff must allege that “the defendant’s response to the need was deliberately 13 indifferent.” Id. A showing of deliberate indifference requires “(a) a purposeful act or 14 failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 15 indifference. Indifference may appear when prison officials deny, delay or intentionally 16 interfere with medical treatment, or it may be shown by the way in which prison physicians 17 provide medical care.” Id. (internal quotation marks and citation omitted). 18 While Dupard alleges he suffered pain during the encounter with Cosio, he does not 19 allege the nature of his serious medical need. Nor does he seek to sue any of the medical 20 staff who were alleged to have received information that he was requesting medical 21 attention. Finally, Dupard does not allege any harm caused by the alleged indifference to 22 his pain or possible medical need. 23 Thus, to the extent that Dupard sought to plead a claim of deliberate indifference to 24 his medical needs claim, it is dismissed sua sponte pursuant to 28 U.S.C. 25 §§ 1915(e)(2)(B)(ii) and 1915A for failure to state a claim. Iqbal, 556 U.S. at 679. 26 5. Plaintiff’s Options 27 Even though Dupard’s Complaint requires dismissal with respect to the claims of 28 retaliation and free speech violations, race discrimination, and inadequate medical care for 1 failure to state a claim, he may file an Amended Complaint that corrects all the deficiencies 2 of pleading identified in this Order. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 3 2015) (“A district court should not dismiss a pro se complaint without leave to amend 4 unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured by 5 amendment.’” (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012))). 6 If Dupard chooses to file an Amended Complaint, that pleading will be subject to 7 another preliminary screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) before 8 the Court determines whether U.S. Marshal Service upon any defendant is warranted. If 9 Dupard does nothing, the Court will dismiss the case based on his failure to prosecute in 10 compliance with a court order. 11 III. CONCLUSION 12 Thus, for the reasons explained, the Court: 13 1. GRANTS Dupard’s motion to proceed IFP (ECF No. 2). 14 2. DIRECTS The Facility Commander of GBDF, or his designee, to collect 15 from Dupard’s trust account the $350 filing fee owed in this case by garnishing monthly 16 payments from his account in an amount equal to twenty percent (20%) of the preceding 17 month’s income and forward those payments to the Clerk of the Court each time the amount 18 in the account exceeds $10. See 28 U.S.C. § 1915(b)(2). 19 3. DIRECTS the Clerk of Court to serve a copy of this Order on the Facility 20 Commander, George Bailey Detention Facility, 446 Alta Road, Suite 5300, San Diego, 21 California, 92158. 22 4. DISMISSES all claims of retaliation, First Amendment violations, race 23 discrimination, and inadequate medical care against Defendant Cosio based on Dupard’s 24 failure to state a plausible claim for relief under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 25 1915A(b)(1). 26 5. GRANTS Dupard forty-five (45) days’ leave from the date of this Order in 27 which to either: (A) file a Notice of Intent to Proceed with his excessive force claim only; 28 or (B) file an Amended Complaint that corrects the deficiencies of pleading identified in 1 || this Order. If Dupard files a Notice of Intent to Proceed with his excessive force claim only, 2 || he may include a request that the U.S. Marshal effect service of summons and his original 3 ||Complaint on Cosio pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3). 4 If Dupard instead chooses to amend, his new pleading must be clearly titled as his 5 Amended Complaint, contain S.D. Cal. Civil Case No. 26-cv-3221-WQH-DEB in its 6 || caption, and be complete in itself without reference to his original Complaint. Defendants 7 ||not named and any claim not realleged in Plaintiff's Amended Complaint, including the 8 currently sufficient excessive force claim alleged against Cosio in his original Complaint, 9 || will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard 10 || Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading 11 supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 12 (noting that claims dismissed with leave to amend which are not re-alleged in an amended 13 pleading may be “considered waived if not repled”’). 14 If Dupard fails to file an Amended Complaint or a Notice of Intent to Proceed within 15 time provided, the Court will enter a final Order dismissing this civil action based both 16 |}on Dupard’s failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. 17 || §§ 1915(e)(2)(B)Gi) and 1915A(b)(1), and his failure to prosecute in compliance with a 18 || court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) 19 || “If a plaintiff does not take advantage of the opportunity to fix his complaint, a district 20 || court may convert the dismissal of the complaint into dismissal of the entire action.’’). 21 22 23 Dated: July 13, 2026 BME: ie Z. Maa 24 Hon. William Q. Hayes 5 United States District Court 26 27 28 14