Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 TOM BLAKE, Case No.: 26-cv-3286-DMS-JLB 10 CDCR #T-77278, 11 Plaintiff, ORDER: GRANTING MOTIONS TO PROCEED IN FORMA PAUPERIS, TO 12 FILE BY MAIL AND TO EXCEED 13 vs. PAGE LIMIT 14 AND 15 J. SAUCEDO, Correctional Officer; SCREENING COMPLAINT 16 J. HERNANDEZ, Correctional Officer; PURSUANT TO DAVID CLAYTON, Medical Doctor, 17 28 U.S.C. §§ 1915(e)(2) AND 1915A(b) Defendants. 18 [ECF Nos. 2, 3, 4] 19 20 Tom Blake, a state prisoner proceeding pro se, has filed a civil rights complaint 21 pursuant to 42 U.S.C. § 1983. ECF No. 1. Blake did not pay the civil filing fee but did file 22 a Motion to Proceed in Forma Pauperis (“IFP”). ECF No. 2. Blake has also filed motions 23 requesting leave to file by mail and exceed the applicable page limit for the Complaint. 24 ECF Nos. 3, 4. In her1 Complaint, Blake alleges that Defendants violated the Eighth 25 Amendment’s prohibition of the infliction of cruel and unusual punishments while she was 26 27 28 1 incarcerated at Richard J. Donavan State Prison (“RJD”). ECF No. 1 at 2–7. For the reasons 2 set forth below, the Court GRANTS Blake’s IFP Motion [ECF No. 2], GRANTS her 3 Motion for Leave to File Complaint by U.S. Mail [ECF No. 3], GRANTS her Motion for 4 Leave to File Excess Pages [ECF No. 4], and SCREENS her Complaint 28 U.S.C. 5 §§ 1915(e)(2) and 1915A(b). The Court finds that Blake adequately alleges Eighth 6 Amendment claims of excessive force against Defendants Saucedo and Hernandez. But to 7 the extent that Blake seeks to make a claim of deliberate indifference to serious medical 8 needs, the Court further finds she fails to state any plausible claim for relief against any of 9 the Defendants. Therefore, the Court ORDERS Blake to either file an Amended Complaint 10 that addresses the pleading deficiencies discussed below or a Notice of Intent to Proceed 11 with the Eighth Amendment claims alleged against Defendants Saucedo and Hernandez in 12 her current Complaint. 13 I. Motion to Proceed IFP 14 Anyone instituting a civil action in a district court of the United States must typically 15 pay a filing fee of $405—consisting of a $350 statutory fee plus an additional $55 16 administrative fee—although the administrative fee does not apply to persons granted leave 17 to proceed IFP. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District 18 Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a 19 plaintiff’s failure to prepay the entire fee only if the plaintiff is granted leave to proceed 20 IFP. See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 21 “While the previous version of the IFP statute granted courts the authority to waive 22 fees for any person ‘unable to pay[,]’ . . . the PLRA [Prison Litigation Reform Act] 23 amended the IFP statute to include a carve-out for prisoners.” Hymas v. U.S. Dep’t of the 24 Interior, 73 F.4th 763, 767 (9th Cir. 2023). Namely, “if a prisoner brings a civil action or 25 files an appeal in forma pauperis, the prisoner ‘shall be required to pay the full amount of 26 a filing fee.’” Id. (quoting 28 U.S.C. § 1915(b)(1)). Section 1915(b) “provides a structured 27 timeline for collecting this fee.” Id. (citing 28 U.S.C. § 1915(b)(1)-(2)). First, prisoners 28 must submit a “certified copy of the[ir] trust fund account statement (or institutional 1 equivalent) for . . . the 6-month period immediately preceding the filing of the complaint.” 2 28 U.S.C. § 1915(a)(2). Next, the Court assesses an initial payment of 20% of the greater 3 of (a) “the average monthly deposits to the prisoner’s account” or (b) “the average monthly 4 balance in the prisoner’s account for the 6-month period immediately preceding the filing 5 of the complaint.” See 28 U.S.C. §§ 1915(b)(1) & (4); Bruce v. Samuels, 577 U.S. 82, 84 6 (2016). Unless the prisoner has no assets, prisoners who proceed IFP must pay the initial 7 partial assessed fee and whatever balance remains in installments regardless of whether 8 their case is ultimately dismissed. 28 U.S.C. § 1915(b)(1) & (2); Bruce, 577 U.S. at 84. 9 Blake has provided a trust account statement from her current institution, California 10 State Prison, Sacramento (“CSP”), showing she had account balances ranging from $0.00 11 and $140.86 during the 6-month period preceding the filing of her Complaint, occasional 12 deposits of $49 and $60, and an available balance of $1.92 at the time of filing. (ECF No. 2 13 at 6.) Based on this showing, the Court GRANTS Blake’s Motion to Proceed IFP (ECF 14 No. 2), imposes no initial filing fee, and directs the Secretary of the California Department 15 of Corrections and Rehabilitation (“CDCR”) or the Secretary’s designee, to instead collect 16 the entire $350 balance of the filing fees required by 28 U.S.C. § 1914 pursuant to the 17 installment payment provisions set forth in 28 U.S.C. § 1915(b)(1) and forward them to 18 the Clerk of the Court. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a 19 prisoner be prohibited from bringing a civil action or appealing a civil action or criminal 20 judgment for the reason that the prisoner has no assets and no means by which to pay the 21 initial partial filing fee”); Taylor v. Delatoore, 281 F.3d 844, 850 (9th Cir. 2002) (finding 22 that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a prisoner’s 23 IFP case based solely on a “failure to pay . . . due to the lack of funds available to him when 24 payment is ordered”). 25 /// 26 /// 27 /// 28 /// 1 II. Motions to File by U.S. Mail and Exceed Page Limit 2 A. Motion for Leave to File Complaint via U.S. Mail [ECF No. 3] 3 Blake asks the Court for leave to file her Complaint via the U.S. Mail instead of 4 electronically, as required by GO653. The Court has accepted Blake’s Complaint, which it 5 received through the U.S. Mail, see ECF No. 1, and therefore GRANTS the motion. 6 B. Exceed Page Limit [ECF No. 4] 7 Blake moves for leave to file excess pages beyond the twenty-two page limit as 8 directed by GO653. The Court GRANTS the motion. The Court will now screen Blake’s 9 Complaint. 10 III. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 11 A. Standard of Review 12 Because Blake is a prisoner and is proceeding IFP, her Complaint requires a 13 preliminary screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these 14 statutes, the Court must sua sponte dismiss Blake’s IFP Complaint, or any portion of it, 15 which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who 16 are immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) 17 (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 18 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that 19 the targets of frivolous or malicious suits need not bear the expense of responding.’” 20 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted). 21 “The standard for determining whether a plaintiff has failed to state a claim upon 22 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 23 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 24 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 25 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 26 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 27 12(b)(6)”). Federal Rule of Civil Procedure 8 “prescribes the information a plaintiff must 28 provide about the merits of his claim at the outset of litigation.” Berk v. Choy, 607 U.S. 1 187, 193 (2026). Together Rules 8 and 12(b)(6) require a complaint to “contain sufficient 2 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 4 U.S. 544, 570 (2007)). 5 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 6 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 7 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 8 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 9 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 10 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 11 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 12 Dismissal “under Rule 12(b)(6) is proper when the complaint either (1) lacks a cognizable 13 legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory.” 14 Valame v. Trump, 157 F.4th 1172, 1173 (9th Cir. 2025) (per curiam) (citing Somers v. 15 Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013)). 16 B. Blake’s Allegations 17 On April 23, 2025, Blake was housed in Richard J. Donovan State Prison (“RJD”), 18 where Correctional Officers J. Saucedo and J. Hernandez and Dr. David Clayton are 19 employed. ECF No. 1 at 1–2. 20 Blake is a 48-year-old transgender person “with several medical and mobility 21 issues.” Id. at 3. She states that she suffers from “back pain and problems with standing for 22 5 to 10 minutes without her legs giving out.” Id. Blake also alleges she “suffers from mental 23 health issues such as sever[e] anxiety, depression, and borderline personality disorder.” Id. 24 On the date in question, she resided in cell B-6-139 and had already received a 25 medical order to have “a wheelchair and walker to make sure” she “did not fall and hurt 26 herself.” Id. 27 28 1 With her wheelchair and walker parked outside her prison cell, Blake “became 2 upset” and covered her cell door and took her hearing aids out due to whispers she started 3 hearing.” Id. And she started to get “paranoid.” Id. 4 Defendant Saucedo “came to her door and started threatening her.” Id. Blake 5 responded by screaming “go away.” Id. Saucedo “made more threats” and Defendant 6 Hernandez then “came to Blake’s door and made inappropriate comments such as ‘you 7 know you like me and I’m cute.’” Id. at 4. 8 Blake was “afraid because she [had] seen these [two] [officers] beat, trick, and 9 assault other inmates. She [k]new they were going to do that to her.” Id. at 4. Blake 10 “became so frighten[ed]” that “she forced herself to the top bunk to get away from them.” 11 Id. at 4. Meanwhile, Blake heard “voices [that] told her ‘were [sic] going to kill you.’” Id. 12 Blake “screamed ‘go away’ again,” “closed her eyes and tried to pray when suddenly the 13 cell door opened and several c/o’s wearing helmets and what looked like football gear 14 entered her cell with a shield yelling ‘stop resisting’ and [she] was on [the] top bunk.” Id. 15 Blake maintains “she was not resisting.” Id. 16 Blake alleges that, at this time, she “knew they were going to beat [her] up like a 17 man.” Id. Blake “threw [her] toilet rise seat at the shield and yelled ‘stop.”’ Id. Then Blake 18 proceeded to pick up pieces of a “broken cane” that she had “on [her] top bunk,” claiming 19 she was “gonna hit [herself] with it to make [her] fear go away when suddenly [she] was 20 pepper sprayed in the face 3 times” with a chemical agent.2 Id. The chemical agent 21 temporarily limited Blake’s vision and made it difficult for her to breathe: she “nearly 22 passed out.” Id. 23 Blake alleges she felt pain shoot from her back to her legs when Officers Saucedo 24 and Hernandez physically removed her from the top bunk. Id. at 4–5. Blake also recalls 25 26 2 Pepper spray is a colloquial term for chemical agents authorized for use by CDCR staff in appropriate 27 circumstances. See Cal. Code. Regs. tit. 15, § 3268(k) (“Departmentally approved chemical agents include, but are not limited to, the following: oleoresin capsicum (OC), chloroacetophenone (CN), and 28 1 that she felt like Saucedo and Hernandez “put their nails into [her] arm pits” when they 2 held her up “to force [her] to walk her to B-Lower shower.” Id. at 5. 3 Blake then provides the following narrative: “my wheelchair was in front of my 4 cell[;] instead they dragged me fast to rinse off in B-Lower shower. Both of these c/o’s 5 were regulars in B-6 and know B-Lower shower only shoots out real hot water but they are 6 corrupt and evil and know that hot water activates pain when [a person is] pepper sprayed.” 7 Id. 8 When the officers placed Blake under the hot running water, she “screamed from the 9 pain and yelled ‘asshole the water is piping hot!’” Id. Saucedo and Hernandez then 10 “dragged [Blake] forcefully to A-Lower shower to rinse off with cold water.” Id. 11 When they “put [Blake] in the shower aggressively,” she “fell to the ground” and 12 screamed “‘I need my wheelchair!’” Id. Another correctional officer retrieved the 13 wheelchair and helped her into it. Id. at 5–6. Blake continued to feel pain in her back “like 14 something exploded inside of” her. Id. at 6. 15 She asserts that Defendants Saucedo and Hernandez “used unnecessary force even 16 tho[ugh] [she] complied with the[ir] orders.” Id. 17 Finally, Blake alleges that, as she was recovering from the use-of-force incident, 18 Defendants Saucedo and Hernandez went “missing” to seek out “Dr. David Clayton to 19 conspire to remove [her] wheelchair and walker from [her] presence.” Id. She further 20 alleges that Dr. Clayton then “removed [her] wheelchair and walker without examining 21 [her]” and “without calling the doctor who ordered these medical mobility DME’s to find 22 out why [she] was given these special mobility DME’s.” Id.3 23 Based on the above allegations, Blake alleges (1) that Saucedo and Hernandez 24 violated her Eighth Amendment right to be free from cruel and unusual punishment by 25 26 27 3 DME is an acronym for “durable medical equipment.” Cal. Code. Regs. tit. 15, § 3999.390(a) (“The Department shall provide Durable Medical Equipment (DME) and medical supplies to patients as 28 1 using excessive force during her cell extraction, and (2) that Dr. Clayton violated her 2 Eighth Amendment protection from deliberate indifference to a serious medical need. Id. 3 at 6–7. Blakes seeks compensatory and punitive damages of $2 million. Id. at 9. 4 C. Discussion 5 Section 1983 does not itself create substantive rights but instead provides “a method 6 for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 7 n.3 (1979). To state a § 1983 claim, a plaintiff must show (1) a deprivation of a 8 constitutional or federal statutory right; and (2) that the defendant acted under color of state 9 law. See West v. Atkins, 487 U.S. 42, 48 (1988). 10 1. Excessive Force 11 In her first claim, Blake alleges that Defendants Saucedo and Hernandez used 12 excessive force when spraying her with a chemical agent, extracting her from her cell, and 13 placing her under very hot water when ostensibly providing her aide after her eyes and 14 respiratory system were irritated by the chemical agent. See ECF No. 1 at 3–6. “[O]nly the 15 unnecessary and wanton infliction of pain constitutes cruel and unusual punishment 16 prohibited by the Eighth Amendment.” Hudson v. McMillian, 503 U.S. 1, 5 (1992). In the 17 context of prison officials who are alleged to have used excessive physical force in 18 violation of the Eighth Amendment, “the core judicial inquiry is . . . whether force was 19 applied in a good-faith effort to maintain or restore discipline, or maliciously and 20 sadistically to cause harm.” Id. at 6–7. “There is no legitimate need to use any force against 21 an inmate who is neither violating prison rules nor reasonably believed to pose a security 22 threat.” Stewart v. Ayala, No.21-cv-9638-RGK-AS, 2023 WL 2993042, at *2 (C.D. Cal. 23 March 8, 2023) (citing Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991)). 24 As currently pleaded against Saucedo and Hernandez, Blake’s complaint is 25 sufficient to survive the low threshold set for sua sponte screening as required by 28 U.S.C. 26 §§ 1915(e)(2) and 1915A(b). While Blake alleges facts that implicate the need for 27 correctional officer intervention, she maintains that she was not resisting when sprayed 28 with the chemical irritant, forced off the top bunk and forcefully placed under hot water 1 which made the pain of the irritant more severe; therefore, her Complaint includes a 2 plausible Eighth Amendment excessive force claim against Defendants Saucedo and 3 Hernandez. Iqbal, 556 U.S. at 678; Hudson, 503 U.S. at 7; see also Hughes v. Rodriguez, 4 31 F.4th 1211, 1222 (9th Cir. 2022) (affirming denial of summary judgment for officers 5 alleged to have beaten and permitted a canine to bite prisoner “after he was fully subdued”); 6 Duclos v. Smith, No. 1:24-CV-00515-HBK-PC, 2024 WL 5508219, at *3 (E.D. Cal. June 7 24, 2024) (finding prisoner who struck so forcefully in the face that he “dropped to the 8 ground immediately,” but alleged not to have posed any credible threat to officers simply 9 by “raising [his] hands” and asking what they were doing adequately alleged an Eighth 10 Amendment excessive use of force claim); Quinones v. Parr, No. 3:20-CV-00390-MMD- 11 CLB, 2021 WL 8321869, at *3 (D. Nev. Oct. 28, 2021) (finding prisoner’s allegations of 12 having been tased and beaten by officers “after they found him sitting against a wall with 13 his legs crossed, hands in the air, and compliant” sufficient to survive screening pursuant 14 to 28 U.S.C. § 1915A). 15 2. Deliberate Indifference to Serious Medical Needs 16 The Eighth Amendment’s prohibition against cruel and unusual punishment 17 mandates that states provide adequate medical care to all of their prisoners. Estelle v. 18 Gamble, 429 U.S. 97, 102 (1976). “Deliberate indifference to serious medical needs of 19 prisoners constitutes the unnecessary and wanton infliction of pain, proscribed by the 20 Eighth Amendment.” Id. at 104. Prisoners serving time pursuant to a criminal judgment 21 may bring deliberate indifference claims against prison officials “under the Eighth 22 Amendment’s Cruel and Unusual Punishment Clause . . . .” Castro v. Cnty. of Los Angeles, 23 833 F.3d 1060, 1067–68 (9th Cir. 2016). 24 In the context of medical care, “to show deliberate indifference, the plaintiff must 25 show that the course of treatment the doctors chose was medically unacceptable under the 26 circumstances and that the defendant(s) chose this course in conscious disregard of an 27 excessive risk to the plaintiff’s health.” Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 28 2016) (citation and quotation marks omitted). Deliberate indifference “may appear when 1 prison officials deny, delay or intentionally interfere with medical treatment, or it may be 2 shown by the way in which prison physicians provide medical care.” Hutchinson v. United 3 States, 838 F.2d 390, 394 (9th Cir. 1988). “Deliberate indifference is a high legal standard. 4 A showing of medical malpractice or negligence is insufficient to establish a constitutional 5 deprivation under the Eighth Amendment.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th 6 Cir.2004); see also Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (explaining 7 that even gross negligence is insufficient to establish deliberate indifference to serious 8 medical needs). Further, a “difference of opinion between a physician and the prisoner — 9 or between medical professionals — concerning what medical care is appropriate does not 10 amount to deliberate indifference.” Hamby, 821 F.3d at 1092. 11 Blake alleges that Defendants Saucedo and Hernandez conspired with Dr. David 12 Clayton to remove or revoke a prior medical directive permitting her use of a permanent 13 wheelchair without an updated medical examination inquiry. ECF No. 1 at 6. 14 Blake’s wheelchair deprivation claims fail to state a plausible claim for relief. At 15 best, Blake posits a correlation between the use of force incident on April 23, 2025, and a 16 subsequent change to her medical equipment directive. But Blake provides virtually no 17 information as to her serious medical need for a permanent wheelchair or any other 18 mobility assistive device and her Complaint contains no further factual content to plausibly 19 suggest Dr. Clayton acted with deliberate indifference to an excessive risk that she would 20 be harmed if her permanent wheelchair directive were discontinued as a result of her April 21 23, 2025 cell extraction. See Hamby, 821 F.3d at 1092. Blake’s Complaint falls short of 22 alleging facts amounting to anything beyond a difference of opinion between her and the 23 physician named in her Complaint. Id. 24 Nor does Blake plausibly plead a claim of conspiracy were the Court to construe her 25 wheelchair deprivation claim as one amounting to a civil conspiracy. See ECF No. 1 at 2 26 (indicating that the doctor “conspire[ed] with c/o’s to remove DMEs of [Blake] with no 27 exam causing suffering and pain”). “To establish liability for a conspiracy in a § 1983 case, 28 a plaintiff must demonstrate the existence of an agreement or meeting of the minds to 1 violate constitutional rights.” Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir. 2 2010) (internal quotations and citation omitted). “Such an agreement . . . may be inferred 3 on the basis of circumstantial evidence such as the actions of the defendants.” Id. (internal 4 quotations and citation omitted). “To be liable, each participant in the conspiracy need not 5 know the exact details of the plan, but each participant must at least share the common 6 objective of the conspiracy.” Id. (internal quotations and citation omitted). “[T]he plaintiff 7 must state specific facts to support the existence of the claimed conspiracy.” Burns v. 8 County of King, 883 F.2d 819, 821 (9th Cir. 1989); see also Olsen v. Idaho State Bd. of 9 Medicine, 363 F.3d 916, 929 (9th Cir. 2004) (“To state a claim for conspiracy to violate 10 constitutional rights, the plaintiff must state specific facts to support the existence of the 11 claimed conspiracy.”) (internal citations omitted). 12 Here, Blake claims Saucedo and Hernandez went “missing” while she was 13 recovering from her exposure to the chemical agent. ECF No. 1 at 6. But Blake’s loss of 14 sight of Saucedo and Hernandez does not support a plausible inference that their absence 15 necessarily equates with some nefarious agreement to deprive Blake of any constitutional 16 right. See Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (“A mere 17 allegation of conspiracy without factual specificity is insufficient.”). Accordingly, Blake’s 18 Eighth Amendment deliberate indifference to serious medical needs and purported 19 conspiracy claims are dismissed sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 20 1915A for failure to state a claim. Iqbal, 556 U.S. at 679. 21 D. Blake’s Options 22 Even though Blake’s Eighth Amendment wheelchair deprivation and conspiracy 23 claims require dismissal, she may file an Amended Complaint that corrects all the 24 deficiencies of pleading identified in this Order. See Rosati v. Igbinoso, 791 F.3d 1037, 25 1039 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint without leave 26 to amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be 27 cured by amendment.’” (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012))). 28 1 If Blake chooses to file an Amended Complaint, that pleading will be subject to 2 another preliminary screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) before 3 the Court determines whether U.S. Marshal Service upon any Defendant is warranted. If 4 Blake does nothing, the Court will dismiss the case based on her failure to prosecute in 5 compliance with a court order. 6 III. CONCLUSION 7 Thus, for the reasons explained, the Court: 8 1. GRANTS Blake’s Motions to Proceed IFP, to File by Mail and to Exceed 9 Page Limits (ECF Nos. 2, 3, 4). 10 2. DIRECTS the Secretary of the CDCR, or the Secretary’s designee, to collect 11 the $350 filing fee owed in this case and forward monthly payments from Blake’s account 12 to the Clerk of the Court as required by 28 U.S.C. § 1915(b)(2). 13 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 14 Macomber, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001, via 15 U.S. Mail, or by forwarding an electronic copy to trusthelpdesk@cdcr.ca.gov. 16 4. DISMISSES Blake’s Eighth Amendment wheelchair deprivation and 17 conspiracy claims against Defendants Saucedo, Hernandez, and Clayton pursuant to 28 18 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1). 19 5. GRANTS Blake forty-five (45) days’ leave from the date of this Order in 20 which to either: (A) file a Notice of Intent to Proceed with her excessive force claims 21 against Defendants Saucedo and Hernandez only; or (B) file an Amended Complaint that 22 corrects all the deficiencies of pleading identified in this Order. 23 If Blake chooses to file an Amended Complaint correcting all the deficiencies 24 outlined in this Order, her Amended Complaint must be complete in itself, without 25 reference to the original pleading. Any claims not re-alleged in the Amended Complaint 26 will be considered waived. See Hal Roach Studios, Inc., 896 F.2d at 1546 (“[A]n amended 27 pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 28 2012) (noting claims dismissed with leave to amend which are not re-alleged in an 1 |}amended pleading may be “considered waived if not repled’’). 2 If Blake instead files a Notice of Intent to Proceed against Saucedo and Hernandez 3 || only, the Court will dismiss Dr. Clayton as a party to this case and direct the U.S. Marshal 4 || to effect service of process upon Saucedo and Hernandez only pursuant to 28 U.S.C. § 5 || 1915(d) and Fed. R. Civ. P. 4(c)(3). If Blake fails to file an Amended Complaint or a Notice 6 || of Intent to Proceed within the time provided, the Court will enter a final Order dismissing 7 civil action based both on Blake’s failure to state a claim upon which relief can be 8 || granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)Gi) and 1915A(b)(1), and her failure to 9 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427 10 || F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity 11 ||to fix his complaint, a district court may convert the dismissal of the complaint into 12 || dismissal of the entire action.”). 13 IT IS SO ORDERED. 14 Dated: August 3, 2026 15 2 oar Sabo 16 Hon. Dana M. Sabraw United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 13