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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
JERRY BOWEN,
CDCR # BW5375,
Plaintiff,
vs.
CDCR PODIATRIST; DR. CORLEONE;
JEFF MACOMBER; C/O SAUCEDO;
LT. HUSS; CDCR; NURSE PAK,
Defendants.
Case No.: 25cv3749-LL-MSB
ORDER DISMISSING SECOND
AMENDED COMPLAINT FOR
FAILURE TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915A(b)
[ECF No. 7]
Plaintiff Jerry Bowen, currently incarcerated at Richard J. Donovan Correctional
Facility (“RJD”) and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C.
§ 1983, and paid the $405 filing fee. See ECF Nos. 1, 4. Prior to the Court screening the
initial Complaint, Petitioner subsequently filed a First Amended Complaint (“FAC”), in
which Plaintiff alleged Defendants violated his federal constitutional rights and his rights
under the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation
Act (“RA”). See ECF No. 5. On June 4, 2026, the Court screened and dismissed the FAC
for failure to state a claim pursuant to 28 U.S.C. §1915A(b), notified Plaintiff of the
deficiencies of his pleading, and granted leave to amend. ECF No. 6. On July 27, 2026,
Plaintiff filed a Second Amended Complaint (“SAC”) [ECF No. 7], again alleging
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Defendants violated his federal constitutional rights and his rights under the ADA and
Section 504 of the RA and now also alleging a state law wrongful death claim. ECF No. 7.
I. 	SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915A(b)
A. 	Standard of Review
Because Plaintiff is a prisoner, his Second Amended Complaint requires pre-Answer
screening pursuant to 28 U.S.C. § 1915A. See 28 U.S.C. § 1915A(a) (“The court shall
review . . . as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a governmental
entity.”). The Court must sua sponte dismiss a prisoner’s complaint, or any portion of it,
which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who
are immune. Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28
U.S.C. § 1915A(b)). “The purpose of § 1915A is ‘to ensure that the targets of frivolous or
malicious suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d
903, 907 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d
680, 681 (7th Cir. 2012)).
“Failure to state a claim under § 1915A incorporates the familiar standard applied in
the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”
Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Rule 12(b)(6) requires a
complaint to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint
states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Id. at 679.
B. 	Allegations in the SAC
Plaintiff alleges he is an “ADA protected inmate with a disability of severe diabetes
requiring insulin.” ECF No. 7 at 4. Plaintiff asserts that “[w]hen [Plaintiff] was assaulted
by Correctional Officer Saucedo during a serious diabetic episode he was discriminated
against because of [h]is disability” and further alleges “CDCR never properly trained its
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officers to know the difference between an altered drug state and a serious low blood sugar
state of diabetic shock or d[i]abetic emergencies.” Id. Plaintiff alleges he was “restrained
and held down and also blamed for assaulting C/O Saucedo during his diabetic emergency”
arising from low blood sugar levels, and after which he was charged with assaulting staff
and was subsequently placed in the Restricted Housing Unit (“RHU”). Id. He claims Huss,
who was also not properly trained and is also responsible for his RHU placement,
“threatened [Plaintiff] by saying ‘If you kick me, you won’t kick nobody else.’” Id.
Separately, Plaintiff alleges that around May 2025, he was provided with foot care
by CDCR Podiatrist “which wounded the toe[]nail [] so badly it got infected” and “the
toe[]nail came off about a week later with puss coming out from the injury.” Id. at 5.
Plaintiff thereafter went to see Dr. Corleone “for a procedure to remove the dead skin from
the infection but [e]nded up cutting too deep and caused a serious wound which got worse.”
Id. Plaintiff alleges he needed “wound care and treatment” for the resultant infection
“which Nurse Pak refused to give him knowing he needed it,” and asserts “[a]ll three
medical staff were deliberately indifferent to the harm it would cause [Plaintiff] which
ultimately caused [h]is death and after being revived caused psychological harm and
em[o]tional distress.” Id. Plaintiff claims that “the chain of events ultimately le[]d to
[Plaintiff] becoming deceased during the amputation of his foot.” Id. at 6.
C. 	Discussion
Plaintiff seeks to proceed against Defendants CDCR Podiatrist, Corleone, Saucedo,
Huss, and Pak in their individual capacities, Defendant Macomber in his individual and
official capacities and against Defendant CDCR in its official capacity. See ECF No. 7 at
2–3. Plaintiff alleges violations of the ADA and Section 504 of the RA, deliberate
indifference arising from a denial of medical care in violation of the Eighth Amendment
and wrongful death under California Code of Civil Procedure section 377.60. Id. at 4–6.
Plaintiff also alleges he was punished in a discriminatory manner due to his disability and
placed in the RHU, which the Court liberally construes as raising a due process and equal
protection claim under the Fourteenth Amendment. Id. at 4. Plaintiff seeks a trial by jury,
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an injunction preventing Defendants from “acts of reprisal” and monetary damages totaling
$10 million. Id. at 8.
1. 	ADA and Section 504 of the RA
Plaintiff alleges Defendant “CDCR is responsible” for the ADA and RA violations
because “it failed to train these officers to deal with ADA protected individuals” and
specifically asserts that “CDCR never properly trained its officers to know the difference
between an altered drug state and a serious low blood sugar state of diabetic shock or
d[i]abetic emergencies.” ECF No. 7 at 4. Plaintiff alleges that due to these failures, he was
assaulted by Defendant Saucedo during his diabetic episode incident, and specifically, he
was restrained, held down, blamed for and charged with assaulting Saucedo, and was
subsequently placed in RHU by both Saucedo and Huss. Id.
While Plaintiff may pursue his ADA and RA claims for damages against CDCR for
the reasons discussed in the prior dismissal order, see ECF No. 6 at 5 (citing United States
v. Georgia, 546 U.S. 151, 154 (2006)), and may also proceed against Defendant Macomber
in his official capacity as to these claims for the reasons previously discussed, see id. (citing
Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) and Miranda B. v. Kitzhaber,
328 F.3d 1181, 1188 (9th Cir. 2003)), for the reasons previously noted, to the extent
Plaintiff seeks to proceed against any Defendants in their individual capacities as to his
ADA and/or RA claims, he may not do so. See id. at 5 n. 2 (citing Vinson v. Thomas, 288
F.3d 1145, 1156 (9th Cir. 2002) and Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.
2002)).
As Plaintiff was also instructed in the prior dismissal order, see ECF No. 6 at 6, to
state a claim under the ADA and/or RA, which again are subject to the same analysis given
the lack of substantial difference between the requisite standards, see id. (citing Zukle v.
Regents of University of California, 166 F.3d 1041, 1045 n.22 (9th Cir. 1999) (citations
omitted)), Plaintiff must allege:
(1) he ‘is an individual with a disability;’ (2) he ‘is otherwise qualified to
participate in or receive the benefit of some public entity’s services, programs,
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or activities;’ (3) he ‘was either excluded from participation in or denied the
benefits of the public entity’s services, programs, or activities, or was
otherwise discriminated against by the public entity;’ and (4) ‘such exclusion,
denial of benefits, or discrimination was by reason of (his) disability.’
O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1060 (9th Cir. 2007) (citations
omitted); see also Lovell, 303 F.3d at 1052 (outlining elements to state a claim under
Section 504 of the RA).
Plaintiff asserts in the SAC that he is an “ADA protected inmate with a disability of
severe diabetes requiring insulin,” ECF No. 7 at 4, but even were the Court to again assume
without deciding that Plaintiff’s diabetes is a qualifying disability, see ECF No. 6 at 6, he
again fails to satisfy the remainder of the required elements to state a claim for relief under
the ADA or RA and has not cured that defect of pleading identified in the prior order. See
id. at 7. This is because Plaintiff again fails to plausibly allege he was excluded from
participation, denied any benefits, or was discriminated against by Defendants by reason
of his disability. See O’Guinn, 502 F.3d at 1060; Lovell, 303 F.3d at 1052. Instead, Plaintiff
alleges that Saucedo’s and Huss’s actions against him were attributable to CDCR’s failure
to train and resulted in Defendants’ inability to distinguish “between an altered drug state
and a serious low blood sugar state of diabetic shock or d[i]abetic emergencies.” ECF No.
7 at 4. Thus, while Plaintiff offers a conclusory contention that he “was discriminated
against due to his disability because CDCR did not have proper d[i]abetic emergency
traini[n]g in place,” id., Plaintiff asserts the contested actions were taken because his
disability was erroneously not recognized, rather than alleging the actions were taken by
reason of his disability. In any event, Plaintiff fails to assert facts which plausibly allege
his subsequent placement or segregation in RHU was done because of his disability rather
than due to the aforementioned incident and again fails to identify what programs, if any,
he was “otherwise qualified to participate in or receive the benefit of” which he was
excluded from or denied participation in due to his disability. O’Guinn, 502 F.3d at 1060
(citations omitted); see also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.”).
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Finally, to the extent Plaintiff again generally alleges in the SAC that he was
“deprived access to a medical service or a medical program” during his diabetic
emergency, ECF No. 7 at 4, he also does not state a claim for relief under the ADA or RA.
As Plaintiff was instructed, see ECF No. 6 at 6–7, this is because “[t]he ADA prohibits
discrimination because of disability, not inadequate treatment for disability,” and Plaintiff
has not cured this defect of pleading. Simmons v. Navajo County, Ariz., 609 F.3d 1011,
1022 (9th Cir. 2010) (“[T]he Act would not be violated by a prison’s simply failing to
attend to the medical needs of its disabled prisoners . . . . The ADA does not create a remedy
for medical malpractice.” (citation omitted)), overruled in part on other grounds by Castro
v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc); see also Nguon v.
Glynn, Case No. 21-cv-2113-CAB-JLB, 2022 WL 1085606, at *8 (S.D. Cal. Apr. 11, 2022)
(“Plaintiff’s allegations of disagreement with his medical treatment and discontinuation of
his medication, although potentially cognizable under the Eighth Amendment, are unlikely
to state an ADA claim simply by being recast as an ADA claim.” (citations omitted)).
Accordingly, Plaintiff’s ADA and RA claims are dismissed sua sponte pursuant to
28 U.S.C. § 1915A(b) for failure to state a claim. Because it is now clear he is unable to
cure the identified pleading defects, Plaintiff’s ADA and RA claims are dismissed against
all Defendants without further leave to amend. See Rosati v. Igbinoso, 791 F.3d 1037, 1039
(9th Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to
amend unless ‘it is absolutely clear that the deficiencies of the complaint could not be cured
by amendment.’” (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012))); U.S. ex
rel. Insoon Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001) (“Futility
of amendment can, by itself, justify the denial of . . . leave to amend.”).
2. 	42 U.S.C. § 1983
Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,
acting 	under color of state law, violate federal 	constitutional or statutory 	rights.”
Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “To establish § 1983 liability, a
plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of
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the United States, and (2) that the deprivation was committed by a person acting under
color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
Plaintiff alleges Defendants CDCR Podiatrist, Dr. Corleone, and Nurse Pak provided
inadequate treatment and or/refused to render necessary medical treatment and asserts
“[a]ll three medical staff were deliberately indifferent to the harm it would cause [Plaintiff]
which ultimately caused [h]is death and after being revived caused psychological harm and
em[o]tional distress” in violation of the Eighth Amendment. ECF No. 7 at 5. He also alleges
CDCR failed to train staff to recognize and deal with diabetic patients. Id. at 4.
a. Eighth Amendment- Denial of and/or Inadequate Medical Care
Plaintiff alleges CDCR Podiatrist, Dr. Corleone, and Nurse Pak failed to provide
him with proper medical care in violation of the Eighth Amendment. ECF No. 7 at 5.
As the Court instructed in the prior dismissal order, see ECF No. 6 at 8–9, “[i]n order
to prevail on an Eighth Amendment claim for inadequate medical care, a plaintiff must
show ‘deliberate indifference’ to his ‘serious medical needs.’” Colwell v. Bannister, 763
F.3d 1060, 1066 (9th Cir. 2014) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
“Deliberate indifference ‘may appear when prison officials deny, delay or intentionally
interfere with medical treatment, or it may be shown by the way in which prison physicians
provide medical care.’” Id. (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th
Cir. 1988)); see Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (“[T]he plaintiff must
show a ‘serious medical need’ by demonstrating that ‘failure to treat a prisoner’s condition
could result in further significant injury or the unnecessary and wanton infliction of pain.’”)
(citations and some internal quotation marks omitted). “[A] prison official violates the
Eighth Amendment when two requirements are met. First, the deprivation alleged must be,
objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting
Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, Plaintiff must allege the prison official
had a “sufficiently culpable state of mind,” that is, “one of ‘deliberate indifference’ to
inmate health or safety.” Id. (quoting Wilson, 501 U.S. at 302–03). A prison official must
“know[] of and disregard[] an excessive risk to inmate health or safety; the official must
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both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” Id. at 837.
The Court again finds Plaintiff sufficiently alleges a “serious medical need” arising
from his foot wound and infection given his status as a diabetic. See ECF No. 7 at 5; see
ECF No. 6 at 9 (citing Lolli v. County of Orange, 351 F.3d 410, 420 (9th Cir. 2003) (“[A]
constitutional violation may take place when the government does not respond to the
legitimate medical needs of a detainee whom it has reason to believe is diabetic.” (citations
omitted))). But Plaintiff again fails to assert sufficient facts, as opposed to conclusory
contentions, which plausibly allege any Defendant was deliberately indifferent to that need.
Here, Plaintiff alleges CDCR Podiatrist treated him for foot care in May 2025, and
during that treatment “wounded the toe[]nail of [Plaintiff] so badly it got infected” after
which his “toe[]nail came off about a week later with puss coming out of the injury.” ECF
No. 7 at 5. Plaintiff thereafter saw Dr. Corleone “for a procedure to remove the dead skin
from the infection but [e]nded up cutting too deep and caused a serious wound which got
worse,” and claims “[t]he infection was so bad [Plaintiff] needed wound care and treatment
which Nurse Pak refused to give him knowing he needed it.” Id.
First, with respect to CDCR Podiatrist and Dr. Corleone, the Court previously
instructed Plaintiff that his allegations in the FAC, in which he claimed CDCR Podiatrist
“created a deep wound during foot care,” resulting in an infection which required Dr.
Corleone to perform an additional procedure, during which Dr. Corleone then “cut too
deep” during that procedure and spread the infection, see ECF No. 6 at 9 (quoting ECF No.
5 at 5), “allege[d] at most negligence or malpractice in these Defendants’ actions in treating
his foot, neither of which states a claim of inadequate medical care under the Eighth
Amendment.” ECF No. 6 at 9–10 (citing Gamble, 429 U.S. at 106 (“[A] complaint that a
physician has been negligent in diagnosing or treating a medical condition does not state a
valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice
does not become a constitutional violation merely because the victim is a prisoner.”)).
Plaintiff’s nearly identical contentions in the SAC, see ECF No. 7 at 5, do not cure the
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previously identified defects of pleading and thus again fail to state a claim under the
Eighth Amendment against either CDCR Podiatrist or Dr. Corleone for the reasons
previously stated.
Second, somewhat in contrast to Plaintiff’s prior assertion that Nurse Pak “refused
to provide adequate wound care,” ECF No. 5 at 5, Plaintiff now appears to claim in the
SAC that Pak refused to provide any wound care, asserting: “The infection was so bad
[Plaintiff] needed wound care and treatment which Nurse Pak refused to give him knowing
he needed it.” ECF No. 7 at 5. However, Plaintiff’s contentions in this regard are
conclusory, as he fails to articulate facts identifying the purported source of Pak’s alleged
knowledge that he needed unspecified “wound care and treatment,” for instance, if Nurse
Pak was directed to provide wound care by a treating physician and failed to do so. Instead,
as pled in the SAC, it is unclear whether Plaintiff could conceivably state a claim of
deliberate indifference against Pak arising from a purposeful act or failure, or whether his
claim perhaps instead stems from a difference of opinion between Pak and Plaintiff as to
the appropriate measure of care, the latter of which the Court previously concluded failed
to state a claim in the FAC. See ECF No. 6 at 10 (citing Colwell, 763 F.3d at 1068 (“A
difference 	of 	opinion 	between 	a 	physician 	and 	the 	prisoner—or 	between 	medical
professionals—concerning what medical care is appropriate does not amount to deliberate
indifference.” (quotation marks and citation omitted); Toguchi v. Chung, 391 F.3d 1051,
1060 (9th Cir. 2004) (“[A] difference of medical opinion . . . cannot support a claim of
deliberate indifference.”)). As Plaintiff was previously instructed, see ECF No. 6 at 10–11,
“to show deliberate indifference, a plaintiff must allege both “(a) a purposeful act or failure
to respond to a prisoner’s pain or possible medical need and (b) harm caused by the
indifference.” Jett, 439 F.3d at 1096 (citation omitted) (emphasis added).
Moreover, Plaintiff was previously advised that he also did not state an Eighth
Amendment claim in the FAC because he “failed to plead facts plausibly alleging how any
Defendants’ actions were ‘medically unacceptable’ such that Plaintiff could potentially
state a claim of deliberate indifference.” ECF No. 6 at 11 (citing Toguchi, 391 F.3d at 1058
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(finding a claim of deliberate indifference can be sustained in a situation where “the chosen
course of treatment ‘was medically unacceptable under the circumstances,’ and was chosen
‘in conscious disregard of an excessive risk to [the prisoner’s] health.” (alteration in
original) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), overruled in part
on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc))); accord
Gordon v. County of Orange, 6 F.4th 961, 970 (9th Cir. 2021)).
Upon review, Plaintiff has not cured that deficiency of pleading in the SAC, as he
proffers only generalized allegations of Defendants’ failure to adhere to unspecified
policies or guidelines, including claiming CDCR Podiatrist “failed to follow the safety
measure of caring for diabetic patien[t]s doing foot care” or “provide a safe procedure” and
claiming Dr. Corleone similarly “refused to follow the guidel[]ines of foot care to diabetic
patients.” ECF No. 7 at 5. Plaintiff’s vague and conclusory allegation that “[t]he podiatrist,
Dr. Corleone, and Nurse Pak were all deliberately indifferent to [his] need for refusing to
give [him] the medical care he needed,” id., without more, is not sufficient. See Iqbal, 556
U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”). If Plaintiff wishes to proceed with an Eighth
Amendment claim against these Defendants, he must set forth factual allegations which
plausibly allege they knew he had a serious medical need for treatment, and knowing of
that 	need, 	deliberately 	refused 	treatment 	and/or 	rendered 	medically 	unacceptable
treatment.
Thus, Plaintiff has failed to state an Eighth Amendment deliberate indifference claim
against any Defendant and, as such, the claim is dismissed sua sponte pursuant to 28 U.S.C.
§ 1915A(b) with leave to amend.
b. Fourteenth Amendment
Plaintiff again alleges that he was discriminated against because of his disability,
placed in the RHU by Defendants Saucedo and Huss and was subsequently “deprived of
access to a medical service or medical program.” ECF No. 7 at 4. To the extent this
contention could again be liberally construed as again raising a due process and equal
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protection claim under the Fourteenth Amendment despite Plaintiff’s failure to enumerate
any such claim in the SAC, see ECF No. 7 generally, Plaintiff fails to state a claim for the
reasons stated in the Court’s prior dismissal order.1 See ECF No. 6 at 13–15.
With respect to the due process aspect of this claim—the portion of Plaintiff’s
complaint arising from his placement in the RHU and alleging that due to such placement
he was subsequently deprived of access to unspecified medical services or programming—
see ECF No. 7 at 4, it fails to state a Fourteenth Amendment due process claim. See Sandin
v. Conner, 515 U.S. 472, 480 (1995) (“The Due Process Clause standing alone confers no
liberty interest in freedom from state action taken ‘within the sentence imposed.’”
(additional citations and quotation marks omitted)); Neal v. Shimoda, 131 F.3d 818, 828
(9th Cir. 1997) (“[A] prisoner does not have a constitutional right . . . to receive a particular
security classification.” (citing Moody v. Daggett, 429 U.S. 78, 87 n.9 (1976))).
Plaintiff also fails to plausibly state a Fourteenth Amendment equal protection claim
for the reasons stated in the prior dismissal order, see ECF No. 6 at 14 (citing Serrano v.
Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (“To state a claim for violation of the Equal
Protection Clause, a plaintiff must show that the defendant acted with an intent or purpose
to discriminate against him based upon his membership in a protected class.”)), namely
because Plaintiff does not allege that he is a member of a “protected class” as relevant to
this analysis, see Serrano, 345 F.3d at 1082, given “[t]he physically disabled are not a
protected class for purposes of equal protection under the Fourteenth Amendment.”
Gamble v. City of Escondido, 104 F.3d 300, 307 (9th Cir. 1997) (citing City of Cleburne,
Tex. v. Cleburne Living Center, 473 U.S. 432, 446 (1985)). Nor are Plaintiff’s vague and
conclusory allegations that “he was discriminated against because of [h]is disability,” ECF
No. 7 at 4, in any way sufficient to state a claim for relief. See Iqbal, 556 U.S. at 678.
1 See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has
instructed the federal courts to liberally construe the ‘inartful pleading’ of pro se litigants.”
(quoting Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam))).
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Accordingly, Plaintiff’s Fourteenth Amendment due process and equal protection
claim is dismissed sua sponte pursuant to 28 U.S.C. § 1915A(b) for failure to state a claim.
Further, because it is now clear Plaintiff is unable to cure the identified pleading defects,
his Fourteenth Amendment claims are dismissed against all Defendants without further
leave to amend. See Rosati, 791 F.3d at 1039; Lee, 245 F.3d at 1052 (“Futility of
amendment can, by itself, justify the denial of . . . leave to amend.”).
c. 	Supervisory Liability
It appears Plaintiff again seeks in the SAC to hold liable Defendant Macomber in
his individual and official capacities and Defendant CDCR in its official capacity for their
alleged failures in supervising and/or training the other Defendants. See ECF No. 7 at 2–4,
6. However, for the reasons discussed in the prior dismissal order, see ECF No. 6 at 15,
(citing Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999); Aholelei v. Department
of Public Safety, 488 F.3d 1144, 1147 (9th Cir. 2007)), Plaintiff may not proceed with a
claim for damages against either Macomber or CDCR in their official capacities. See also
id. (citing Dittman, 191 F.3d at 1025–26; Alabama v. Pugh, 438 U.S. 781, 782 (1978)).
Accordingly, the Court dismisses CDCR and Macomber to the extent Plaintiff seeks
damages from them in their official capacities as to his Eighth and Fourteenth Amendment
claims.
Plaintiff alleges “CDCR never properly trained its officers to know the difference
between an altered drug state and a serious low blood sugar state of diabetic shock or
d[i]abetic emergencies,” ECF No. 7 at 4, but to the extent Plaintiff again also seeks to hold
Defendant Macomber liable in his individual capacity for any failure to train and/or
supervise the other Defendants, he again fails to state a claim for relief.
As the Court noted in the prior dismissal order, see ECF No. 6 at 16, “[a] supervisory
official may be held liable under § 1983 only if ‘there exists either (1) his or her personal
involvement in the constitutional violation, or (2) a sufficient causal connection between
the supervisor’s wrongful conduct and the constitutional violation,’” Keates v. Koile, 883
F.3d 1228, 1242–43 (9th Cir. 2018) (quoting Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.
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2011)). Here, Plaintiff again fails to set forth facts which plausibly allege Defendant
Macomber had any actual knowledge of the specific failures Plaintiff complains of and
instead only generally asserts CDCR “never properly trained its officers” and “did not have
proper diabetic emergency traini[n]g in place” and “failed to train these officers to deal
with ADA protected individuals.” ECF No. 7 at 4. Plaintiff again fails to plead specific
factual allegations concerning any actual action or inaction by Macomber as to his Eighth
or Fourteenth Amendment claims nor does Plaintiff allege a constitutional violation caused
by Macomber’s action or lack of action and thus, any allegation in this regard fails for the
same reasons articulated in the prior dismissal order. See ECF No. 6 at 16 (citing Leer v.
Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“The inquiry into causation must be
individualized and focus on the duties and responsibilities of each individual defendant
whose acts or omissions are alleged to have caused a constitutional deprivation.”)); see
also Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009) (“In a section 1983 claim, a
supervisor is liable for the acts of his subordinates if the supervisor participated in or
directed the violations, or knew of the violations of subordinates and failed to act to prevent
them.” (internal quotation marks and citation omitted). Plaintiff’s conclusory contentions
are again insufficient to state a claim for relief. See Iqbal, 556 U.S. at 678.
Thus, Macomber must be again dismissed from this action and because it is now
clear Plaintiff is unable to cure the identified pleading defects, the dismissal is without
further leave to amend. See Rosati, 791 F.3d at 1039; Lee, 245 F.3d at 1052.
3. 	State Law Wrongful Death Claim
Finally, Plaintiff raises a claim under California Code of Civil Procedure section
377.60 alleging his own wrongful death and “request[s] that this Court allow him to
proceed on this wrongful death claim due to the fact that the Defendants CDCR, Jeff
Macomber and Nurse Pak, Dr. Corleone, [and] CDCR Podiatrist all contributed to the chain
of events that ultimately le[]d to [Plaintiff] becoming deceased during the amputation of
his foot due to their deliberate indifference.” ECF No. 7 at 1, 6.
/ / /
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“[I]n any civil action of which the district courts have original jurisdiction, the
district courts shall have supplemental jurisdiction over all other claims that are so related
to claims in the action within such original jurisdiction that they form part of the same case
or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
Here, because the Court has dismissed all of Plaintiff’s federal claims from the instant civil
action, the Court declines to exercise supplemental jurisdiction over this state law claim.2
See 28 U.S.C. § 1367(c) (“The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if– . . . (3) the district court has dismissed all
claims over which it has original jurisdiction . . .”).
II. 	CONCLUSION AND ORDER
For 	the 	reasons 	discussed 	above, 	the 	Court 	DISMISSES 	Plaintiff’s 	Second
Amended Complaint in its entirety for failing to state a claim upon which relief may be
granted pursuant to 28 U.S.C. § 1915A(b)(1). Plaintiff’s ADA/RA claim, Fourteenth
Amendment claim, and his supervisory liability contentions are dismissed without further
leave to amend. The Court GRANTS Plaintiff leave to file a Third Amended Complaint,
on or before November 23, 2026, which cures all the deficiencies of pleading noted as to
his Eighth Amendment claim alone. Plaintiff’s Third Amended Complaint must be
2 Separately, the Court notes that while Plaintiff seeks to bring a wrongful death claim for
his own death, Plaintiff acknowledges that he was thereafter “revived,” and is thus not
presently deceased. See ECF No. 7 at 5. It also appears Plaintiff, who seeks to bring a
wrongful death claim based on his own non-permanent “death,” may lack standing to bring
this claim on his own behalf. See Cal. Civ. Proc. § 377.60 (“A cause of action for the death
of a person caused by the wrongful act or neglect of another may be asserted by any of the
following persons or by the decedent’s personal representative on their behalf: (a) The
decedent’s surviving spouse, domestic partner, children, and issue of deceased children,
or, if there is no surviving issue of the decedent, the persons, including the surviving spouse
or domestic partner, who would be entitled to the property of the decedent by intestate
succession. If the parents of the decedent would be entitled to bring an action under this
subdivision, and the parents are deceased, then the legal guardians of the decedent, if any,
may bring an action under this subdivision as if they were the decedent’s parents.”).
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complete by itself without reference to his original pleading. Defendants not named and
any claim not re-alleged in his Third Amended Complaint will be considered waived. See
S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc., 896 F.2d at 1546 (“[A]n amended pleading
supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)
(claims which are not re-alleged in an amended pleading may be “considered waived if not
repled.”).
If Plaintiff fails to file a Third Amended Complaint within the time provided, the
Court will enter a final Order dismissing this civil action based both on Plaintiff’s failure
to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915A(b)(1) and
his failure to prosecute in compliance with a court order requiring amendment. See Lira v.
Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of
the opportunity to fix his complaint, a district court may convert the dismissal of the
complaint into dismissal of the entire action.”).
IT IS SO ORDERED.
Dated: October 9, 2026
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