Roberts #878021 v. Michigan Department of Corrections et al, No. 1:2023cv00927 - Document 11 (W.D. Mich. 2023)

Court Description: OPINION; signed by Magistrate Judge Sally J. Berens (jln)

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Roberts &#035;878021 v. Michigan Department of Corrections et al Doc. 11 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ DONALD ODEALL ROBERTS, Plaintiff, v. Case No. 1:23-cv-927 Honorable Sally J. Berens MICHIGAN DEPARTMENT OF CORRECTIONS et al., Defendants. ____________________________/ OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff has been granted leave to proceed in forma pauperis. (ECF No. 4.) Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, Plaintiff consented to proceed in all matters in this action under the jurisdiction of a United States magistrate judge. (ECF No. 1, PageID.14.) This case was referred to Prisoner Early Mediation but was removed from mediation at Plaintiff’s request (ECF Nos. 7 and 8.) and is presently before the Court for preliminary review under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court is required to conduct this initial review prior to the service of the complaint. See In re Prison Litig. Reform Act, 105 F.3d 1131, 1131, 1134 (6th Cir. 1997); McGore v. Wrigglesworth, 114 F.3d 601, 604–05 (6th Cir. 1997). Service of the complaint on the named defendants is of particular significance in defining a putative defendant’s relationship to the proceedings. “An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a Dockets.Justia.com court’s authority, by formal process.” Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). “Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.” Id. at 350. “[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.” Id. (citations omitted). That is, “[u]nless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.” Id. at 351. Therefore, the PLRA, by requiring courts to review and even resolve a plaintiff’s claims before service, creates a circumstance where there may only be one party to the proceeding—the plaintiff—at the district court level and on appeal. See, e.g., Conway v. Fayette Cnty. Gov’t, 212 F. App’x 418 (6th Cir. 2007) (“Pursuant to 28 U.S.C. § 1915A, the district court screened the complaint and dismissed it without prejudice before service was made upon any of the defendants . . . [such that] . . . only [the plaintiff] [wa]s a party to this appeal.”). Here, Plaintiff has consented to a United States magistrate judge conducting all proceedings in this case under 28 U.S.C. § 636(c). That statute provides that “[u]pon the consent of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings . . . and order the entry of judgment in the case . . . .” 28 U.S.C. § 636(c). Because the named Defendants have not yet been served, the undersigned concludes that they are not presently parties whose consent is required to permit the undersigned to conduct a preliminary review under the PLRA, in the same way they are not parties who will be served with or given notice of this opinion. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (“The record does not contain a consent 2 from the defendants. However, because they had not been served, they were not parties to this action at the time the magistrate entered judgment.”).1 Under the PLRA, the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff’s complaint for failure to state a claim against Defendants Washington, Heilig, Brown, McIntyre, Masarik, Ramirez, and Fuller. The Court will also dismiss, for failure to state a claim, Plaintiff’s official capacity claims against Defendants Rubley, Queszada, Serritos, Walden, and Kelly. Discussion I. Factual Allegations Plaintiff is presently incarcerated with the Michigan Department of Corrections (MDOC) at the Alger Correctional Facility (LMF) in Munising, Alger County, Michigan. The events about which he complains, however, occurred at the Bellamy Creek Correctional Facility (IBC) in Ionia, 1 But see Coleman v. Lab. & Indus. Rev. Comm’n of Wis., 860 F.3d 461, 471 (7th Cir. 2017) (concluding that, when determining which parties are required to consent to proceed before a United States magistrate judge under 28 U.S.C. § 636(c), “context matters” and the context the United States Supreme Court considered in Murphy Bros. was nothing like the context of a screening dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c)); Williams v. King, 875 F.3d 500, 503–04 (9th Cir. 2017) (relying on Black’s Law Dictionary for the definition of “parties” and not addressing Murphy Bros.); Burton v. Schamp, 25 F.4th 198, 207 n.26 (3d Cir. Feb. 10, 2022) (premising its discussion of “the term ‘parties’ solely in relation to its meaning in Section 636(c)(1), and . . . not tak[ing] an opinion on the meaning of ‘parties’ in other contexts”). 3 Ionia County, Michigan. Plaintiff sues the Michigan Department of Corrections (MDOC), MDOC Director Heidi Washington, Corrections Officers Unknown Rubley, Unknown Heilig, Unknown Brown, and Unknown Queszada, Healthcare Department Employees Delphine Walden and Justine Kelly, Seargent Unknown Serritos, Lieutenants Unknown Ramirez and Unknown Fuller, Registered Nurses Kenneth McIntyre and Erinn Masarik, and Warden Matt Macauley. Plaintiff alleges that on September 23, 2022, he was housed at IBC in Unit 5. While Plaintiff was on his way from the yard to his housing unit at 1:20 in the afternoon, he noticed Defendant Rubley involved in an altercation with another prisoner. Plaintiff turned around to leave the unit in order to avoid interfering with the altercation. Plaintiff then heard an announcement on the PA system that the unit and yard were being shut down, so he reentered the unit and attempted to go to his cell. (ECF No. 1, PageID.9.) While he was heading towards his cell, Defendant Rubley followed Plaintiff and asked him if he wanted to fight. Plaintiff attempted to walk faster to his cell, but Defendant Rubley continued to follow him, calling him a “bitch ass ni**er.” (Id. at PageID.9–10.) Plaintiff held his hands in the air to show that he was not a threat. Plaintiff was placed in handcuffs by Corrections Officers and Defendants Queszada and Rubley, as they proceeded to escort Plaintiff to the segregation unit. Before leaving the unit, Plaintiff was bent over at the waist with his arms over his head while both Defendants Queszada and Rubley began to punch and stab him in his side and upper body area. Defendants Queszada and Rubley then used Plaintiff’s head to open the door by banging on it with so much force that Plaintiff continues to get headaches. (ECF No. 1, PageID.10.) Defendant Serritos ordered Defendants Queszada and Rubley to “fuck that ni**er pussy boy up,” and they continued to assault Plaintiff. (ECF No. 1, PageID.11.) Plaintiff was placed face against the wall during the second assault. Plaintiff was then taken to the shower for a strip search 4 and saw that he was bleeding badly from his stomach area due to a puncture wound. An unknown officer noticed the blood and alerted health care, he also photographed the wound. (ECF No. 1, PageID.12.) Defendants Walden and Kelly arrived approximately 10 minutes later, and Plaintiff informed them that he had been stabbed. Defendants Walden and Kelly told Plaintiff that it was not that bad, and he would not die. Defendants Walden and Kelly did not do anything to stop Plaintiff’s bleeding or to relieve his pain. Plaintiff claims that Defendants Ramirez and Fuller also failed to render any medical aid to Plaintiff. (ECF No. 1, PageID.12–13.) Plaintiff states that Defendants violated his rights under the Eighth Amendment and seeks damages, as well as declaratory and injunctive relief. II. Failure to State a Claim A complaint may be dismissed for failure to state a claim if it fails “‘to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 5 ‘show[n]’—that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)); see also Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because Section 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under Section 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994). Here, Plaintiff alleges the Defendants have violated the Eighth Amendment proscription against cruel and unusual punishment. A. MDOC Plaintiff may not maintain a Section 1983 action against the MDOC. Regardless of the form of relief requested, the states and their departments are immune under the Eleventh Amendment from suit in the federal courts, unless the state has waived immunity or Congress has expressly abrogated Eleventh Amendment immunity by statute. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–101 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); O’Hara v. Wigginton, 24 F.3d 823, 826 (6th Cir. 1994). Congress has not expressly abrogated Eleventh Amendment immunity by statute, Quern v. Jordan, 440 U.S. 332, 341 (1979), and the State of Michigan has not consented to civil rights suits in federal court. Abick v. Michigan, 803 F.2d 874, 877 (6th Cir. 1986). In numerous opinions, the Sixth Circuit has specifically held that the MDOC is absolutely immune from a Section 1983 suit under the Eleventh Amendment. See, e.g., Harrison 6 v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013); Diaz v. Mich. Dep’t of Corr., 703 F.3d 956, 962 (6th Cir. 2013); McCoy v. Michigan, 369 F. App’x 646, 653–54 (6th Cir. 2010). Therefore, Plaintiff’s claim against the MDOC is properly dismissed on grounds of immunity. In addition, the State of Michigan (acting through the MDOC) is not a “person” who may be sued under Section 1983 for money damages. See Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989)); Harrison, 722 F.3d at 771. Therefore, Plaintiff’s claim against the MDOC also is properly dismissed for failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B)(iii), 1915A(b), and 42 U.S.C. § 1997e(c). B. Defendants Washington and Macauley Plaintiff’s claims against Defendants Washington and Macauley appear to be based entirely upon the fact that they were employed in supervisory capacities in the MDOC. Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior or vicarious liability. Iqbal, 556 U.S. at 676; Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). A claimed constitutional violation must be based upon active unconstitutional behavior. Grinter v. Knight, 532 F.3d 567, 575–76 (6th Cir. 2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002). The acts of one’s subordinates are not enough, nor can supervisory liability be based upon the mere failure to act. Grinter, 532 F.3d at 576; Greene, 310 F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004). Moreover, Section 1983 liability may not be imposed simply because a supervisor denied an administrative grievance or failed to act based upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “[A] plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Plaintiff has failed to allege that Defendants 7 Washington and Macauley engaged in any active unconstitutional behavior. Accordingly, he fails to state a claim against them. C. Defendants Heilig, Brown, McIntyre, and Masarik Plaintiff claims that Defendants violated his rights under the Eighth Amendment. The Eighth Amendment imposes a constitutional limitation on the power of the states to punish those convicted of crimes. Punishment may not be “barbarous,” nor may it contravene society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 345–46 (1981). The Amendment, therefore, prohibits conduct by prison officials that involves the “unnecessary and wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial of the “minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich, 148 F.3d 596, 600–01 (6th Cir. 1998). The Eighth Amendment is only concerned with “deprivations of essential food, medical care, or sanitation” or “other conditions intolerable for prison confinement.” Rhodes, 452 U.S. at 348 (citation omitted). Moreover, “[n]ot every unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at 954. “[R]outine discomfort is ‘part of the penalty that criminal offenders pay for their offenses against society.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347). As a consequence, “extreme deprivations are required to make out a conditions-of-confinement claim.” Id. For a prisoner to prevail on an Eighth Amendment claim, he must show that he faced a sufficiently serious risk to his health or safety and that the defendant official acted with “‘deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479–80 (6th Cir. 2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate indifference standard to 8 medical claims)); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying deliberate indifference standard to conditions of confinement claims)). The deliberate-indifference standard includes both objective and subjective components. Farmer, 511 U.S. at 834; Helling, 509 U.S. at 35–37. To satisfy the objective prong, an inmate must show “that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. Under the subjective prong, an official must “know[] of and disregard[] an excessive risk to inmate health or safety.” Id. at 837. “[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842. Plaintiff does not even mention Defendants Heilig, Brown, McIntyre, and Masarik in the body of his complaint. Although, Plaintiff attaches medical kite responses as exhibits to his complaint, which include responses by Defendants Masarik and McIntyre. (ECF No. 1-1, PageID.25–26.) A review of the exhibits shows that Defendant Masarik responded to a kite on September 9, 2022, stating that a nursing assessment had been scheduled. (Id. at PageID.25.) In addition, the exhibits show that Defendant McIntyre responded to a kite on October 18, 2022, stating that no foreign body had been found in Plaintiff’s abdomen, but that there was a large amount of feces throughout his colon, suggesting constipation. Plaintiff was scheduled for a follow-up with the provider and was instructed to increase fluid intake and exercise. (Id. at PageID.26.) Nothing in Plaintiff’s complaint or the attachments thereto support a finding that Defendants Heilig, Brown, McIntyre, and Masarik acted with deliberate indifference. While a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible 9 on its face.” Twombly, 550 U.S. at 570. The court need not accept “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the pleader is entitled to relief.” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Therefore, Plaintiff’s Eighth Amendment claims against Defendants Heilig, Brown, McIntyre, and Masarik are properly dismissed. D. Defendants Ramirez and Fuller Plaintiff makes a conclusory assertion that Defendants Ramirez and Fuller also failed to render any medical aid to him.2 However, Plaintiff fails to allege any facts in support of this assertion. As noted above, there is no supervisory vicarious liability under Section 1983, see Iqbal, 556 U.S. at 676; Monell, 436 U.S. at 691; Everson, 556 F.3d at 495, and conclusory allegations of unconstitutional conduct without specific factual allegations fail to state a claim under Section 1983, see Iqbal, 556 U.S. at 678–79; Twombly, 550 U.S. at 555. Therefore, Plaintiff fails to state a claim against Defendants Ramirez and Fuller. 2 Plaintiff’s “factual” allegations against Defendants Ramirez and Fuller appear in just one paragraph in the complaint: [T]hey were acting under the color of state [law] the day in question as BELLAMY CREEK CORRECTIONAL FACILITY shift supervisors and they failed to act in the appropriate manner to help Petitioner nor did they render any medical attention to Petitioner and the lack of these acts amounts to Deliberate Indifference. (Compl., ECF No. 1, PageID.13.) 10 E. Defendants Walden and Kelly Plaintiff alleges that Defendants Walden and Kelly arrived approximately 10 minutes after he was assaulted and that he informed them that he had been stabbed. Defendants Walden and Kelly told Plaintiff that it was not that bad, and he would not die, and they failed to do anything to stop Plaintiff’s bleeding or to relieve his pain. Although Plaintiff’s claims against Defendants Walden and Kelly are largely conclusory, viewed in the light most favorable to Plaintiff, he has stated an Eighth Amendment claim against these Defendants. Therefore, Defendants Walden and Kelly are not entitled to dismissal on initial review. F. Defendants Rubley, Queszada, and Serritos As noted above, Plaintiff alleges that Defendants Rubley and Queszada repeatedly punched and stabbed him after Defendant Serritos told them to “f**k Plaintiff up.” Punishment may not be “barbarous” nor may it contravene society’s “evolving standards of decency.” See Rhodes, 452 U.S. at 345–46; see also Trop v. Dulles, 356 U.S. 86, 101 (1958). The Eighth Amendment also prohibits conditions of confinement which, although not physically barbarous, “involve the unnecessary and wanton infliction of pain.” Rhodes, 452 U.S. at 346. Among unnecessary and wanton inflictions of pain are those that are “totally without penological justification.” Id. Because Plaintiff has alleged facts showing that Defendants Rubley and Queszada subjected him to excessive force at the direction of Defendant Serritos, his Eighth Amendment claims against these Defendants may not be dismissed on initial review. G. Official Capacity claims Plaintiff’s official capacity claims against Defendants are subject to dismissal. Officials named in their official capacities are entitled to immunity with respect to claims for damages. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Turker v. Ohio Dep’t of Rehab. & 11 Corr., 157 F.3d 453, 456 (6th Cir. 1998). Moreover, an official capacity action seeking injunctive relief constitutes an exception to sovereign immunity. See Ex parte Young, 209 U.S. 123, 159–60 (1908) (holding that the Eleventh Amendment immunity does not bar prospective injunctive relief against a state official). However, the Supreme Court has cautioned that “Ex parte Young can only be used to avoid a state’s sovereign immunity when a ‘complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’” Ladd v. Marchbanks, 971 F.3d 574, 581 (6th Cir. 2020) (quoting Verizon Md. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)). Here, Plaintiff’s complaint involves events that occurred in September and October of 2022 and does not set forth any allegations suggesting that any named Defendants are engaged in ongoing violations of federal law. Moreover, following the events set forth in Plaintiff’s complaint, he was transferred to LMF. The Sixth Circuit has held that transfer to another prison facility moots prisoner injunctive and declaratory claims. Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Mowatt v. Brown, No. 89-1955, 1990 WL 59896 (6th Cir. May 9, 1990); Tate v. Brown, No. 89-1944, 1990 WL 58403 (6th Cir. May 3, 1990); Howard v. Heffron, No. 89-1195, 1989 WL 107732 (6th Cir. Sept. 20, 1989); Williams v. Ellington, 936 F.2d 881 (6th Cir. 1991). Underlying the rule is the premise that injunctive relief is appropriate only where plaintiff can show a reasonable expectation or demonstrated probability that he is in immediate danger of sustaining direct future injury as the result of the challenged official conduct. Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). Past exposure to an isolated incident of illegal conduct does not, by itself, sufficiently prove that the plaintiff will be subjected to the illegal conduct again. See, e.g., Lyons, 461 U.S. at 102; Alvarez v. City of Chicago, 649 F. Supp. 43 (N.D. Ill. 1986); Bruscino v. Carlson, 654 F. Supp. 609, 614, 12 618 (S.D. Ill. 1987), aff’d, 854 F.2d 162 (7th Cir. 1988); O’Shea v. Littleton, 414 U.S. 488, 495– 96 (1974). A court should assume that, absent an official policy or practice urging unconstitutional behavior, individual government officials will act constitutionally. Lyon, 461 U.S. at 102; O’Shea, 414 U.S. at 495–96. Thus, Plaintiff cannot maintain any official capacity claims for injunctive relief against Defendants. Accordingly, his official capacity claims will be dismissed in their entirety. Conclusion Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Defendants Washington, Heilig, Brown, McIntyre, Masarik, Ramirez, and Fuller will be dismissed for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court will also dismiss, for failure to state a claim, Plaintiff’s official capacity claims against Defendants Rubley, Queszada, Serritos, Walden, and Kelly. Plaintiff’s Eighth Amendment claims against Defendants Rubley, Queszada, Serritos, Walden, and Kelly remain in the case. An order consistent with this opinion will be entered. Dated: /s/ Sally J. Berens SALLY J. BERENS United States Magistrate Judge November 6, 2023 13

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