ORDER ON MOTIONS TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT

YVONNE GONZALEZ ROGERS, District Judge.

Now before the Court is the Joint Motion to Dismiss Plaintiff's First Amended Complaint of Defendants G. Ellis, L. Zamora, M. Sepulveda, M. Kuersten, and J. Clark Kelso ("individual CDCR defendants") (Dkt. No. 123), and the Motion to Dismiss of Defendant California Department of Corrections and Rehabilitation ("CDCR") (Dkt. No. 132).

Having considered the arguments in the papers and at the hearing, and for the reasons stated on the record and below, the Motion is GRANTED without leave to amend as to the claims against J. Clark Kelso and is GRANTED with leave to amend as to the remaining individual CDCR defendants. The Motion to Dismiss of CDCR is GRANTED without leave to amend.

BACKGROUND

Plaintiff Sean Patrick Doyle, a prisoner in California state custody, filed the above-styled civil-rights action in May 2012 while proceeding pro se. Plaintiff's original complaint, which was over 100 pages long, alleged various state law medical and retaliation claims, and federal claims under 42 U.S.C. §§ 1983, 1985, 1988, and 1997(e), as well as under the Eighth Amendment. Plaintiff named the following defendants: CDCR; Correctional Training Facility ("CTF") Chief Medical Officer M. Sepulveda; CTF Chief Executive Officer G. Ellis; California Correctional Health Care Services ("CCHCS") Chief J. D. Zamora1; CCHCS Receiver J. Clarke Kelso, CTF Physician M. Kuersten; and "Doe No. 1 through Doe No. 20." The Court notes that plaintiff has identified Doe Defendants Nos. 18 through 20 to include "Correctional Corporation of America ["CCA"] (Doe No. 20), and its agents, officers, or employees (Doe[] No. 18 and No. 19)." (Compl. at 6, 11-L.)

On January 16, 2014, two attorneys appeared on plaintiff's behalf. (Dkt. No. 98.) Following the appearance of counsel, the Court ordered as follows:

(Dkt. No. 103 at 2.)

In response thereto, plaintiff filed his First Amended Complaint on May 8, 2014. (Dkt. No. 106 ("FAC").) Plaintiff now alleges only four claims for relief: (1) violations of 42 U.S.C. section 1983; (2) Negligence; (3) Negligence per se; and (4) Injunctive Relief. In addition, plaintiff now names only seven Defendants: CDCR; Kelso; Sepulveda; Ellis; Zamora; Kuersten; and CCA.2 Plaintiff seeks injunctive relief, monetary damages, attorneys' fees, and costs of suit. (FAC at ¶ 46.)

In support of these claims, plaintiff alleges that starting in 2000, he suffered from serious medical needs relating to his back that went unmet. (FAC at ¶ 16.) Plaintiff asserts that after beginning to experience significant and acute back pain, Dr. Harold D. Segal of the California Men's Colony-East at San Luis Obispo ("CMC-E") diagnosed him with degenerative disc disease. Dr. Segal prescribed epidural injections and told Plaintiff that he would require back surgery to correct the problem. (FAC at ¶¶ 16-17.) The individual CDCR defendants worked at the Correctional Training Facility where plaintiff was relocated after his time at CMC-E, and allegedly knew that plaintiff had these medical needs but nonetheless failed to take steps to address them. (FAC at ¶¶ 9-12.) All four of the individual CDCR defendants allegedly had the ability to obtain the proper medical care for plaintiff, but did not so do. (FAC at ¶¶ 9-12.) Plaintiff further contends that the individual CDCR defendants stopped plaintiff's epidural injections and transferred him to the Correctional Training Facility at Soledad, California, when he complained that he was no longer receiving his medication.3 (FAC at ¶ 18.) Because of this transfer, plaintiff claims, the surgery that Dr. Segal recommended was not performed. (FAC at ¶ 19.)

LEGAL STANDARD

A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in a complaint. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[F]actual allegations must be enough to raise a right to relief above the speculative level." Id.

In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all material allegations in the complaint, as well as all reasonable inferences to be drawn from them. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). The complaint must be read in the light most favorable to the nonmoving party. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). However, "[i]n keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 556 U.S. 662 (2009); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) ("[F]or a complaint to survive a motion to dismiss, the non-conclusory `factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.") (citing Twombly and Iqbal); Sprewell, 266 F.3d at 988; W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Ultimately, "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 663-64.

Furthermore, unless a court converts a Rule 12(b)(6) motion into a motion for summary judgment, a court cannot consider material outside of the complaint (e.g., facts presented in briefs, affidavits, or discovery materials). In re Am. Cont'l Corp./Lincoln Sav. & Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir. 1996), rev'd on other grounds sub nom Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). A court may, however, consider exhibits submitted with or alleged in the complaint and matters that may be judicially noticed pursuant to Federal Rule of Evidence 201. In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001).

As a general rule, leave to amend a complaint which has been dismissed should be freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when "the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

ANALYSIS

1. Claims Against Federal Receiver J. Clark Kelso

Kelso argues that plaintiff's FAC should be dismissed for three independent reasons. First, Kelso contends that the FAC fails to meet the pleading standard set forth by Twombly and Iqbal. (Dkt. No. 123 at 10.) Second, with respect to plaintiff's constitutional claims, Kelso asserts that he is not a state actor for purposes of 42 U.S.C. § 1983. (Id. at 12.) Third, as a Receiver appointed pursuant to a judicial order, Kelso is entitled to quasi-judicial immunity. (Id. at 5.)

As an initial matter, the Court finds that plaintiff's FAC does not state sufficiently "the `grounds' of his `entitlement to relief'" against Kelso. Twombly, 550 U.S. at 555. In order to overcome a motion to dismiss, the FAC must both state cognizable claims against Kelso and supply enough "factual allegations" to support those claims. Iqbal, 556 U.S. at 678. Here, plaintiff does not advance any specific factual allegations against Kelso other than that he is the Court-appointed Receiver with the "ability and power" to address his medical needs, and that Kelso has been "on notice of Plaintiff's serious medical needs" since the filing of plaintiff's original Complaint, which purportedly put Kelso on notice. (FAC at ¶ 8.) Such general assertions do not plausibly state a claim for relief. Without "factual content" to explain how and why Kelso is responsible for plaintiff's injury, the Court cannot "draw [a] reasonable inference that [Kelso] is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.

More fundamentally, even if plaintiff could allege a plausible claim against Kelso, Kelso would be immune from suit. When Judge Henderson appointed a Receiver of the California prison medical care system, he ordered that: "The Receiver and his staff shall have the status of officers and agents of this Court and as such shall be vested with the same immunities as vest with this Court." Those judicial immunities extend to immunity from suit. See Pierson v. Ray, 286 U.S. 547, 553-54 (1967) ("Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction...."). This "quasi-judicial immunity" shields Kelso from suit for all actions taken in his capacity as Receiver. See In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002). Here, plaintiff seeks to sue Kelso in his capacity as Receiver for acts or omissions relating to plaintiff's medical needs. Kelso is immune. See Haller v. Hartley, No. 1:12-cv-01599 JLT (PC), 2013 WL 322321 (E.D. Cal. Jan. 28, 2013) ("[T]he Court finds that Kelso is entitled to quasi-judicial immunity and suit may not be maintained against him."). Accordingly, plaintiff's claims against Kelso must be dismissed. See, e.g., Mullis v. U.S. Bankr. Court for Dist. of Nevada, 828 F.2d 1385, 1387 n. 6 (9th Cir. 1987).

Because no amendment could overcome Kelso's immunity from suit, any amendment would be futile and the Court need not consider Kelso's remaining arguments. For these reasons, plaintiff's claims against Kelso are DISMISSED with prejudice.

2. Claims Against CDCR

In his FAC, plaintiff asserts claims against CDCR for negligence, negligence per se pursuant to California Government Code section 845.6, and violation of the Eighth Amendment. CDCR has moved to dismiss these claims on the basis of its Eleventh Amendment immunity. (Dkt. No. 132.) In response thereto, plaintiff filed a statement of non-opposition wherein he acknowledged that the Eleventh Amendment bars his claims against CDCR. (Dkt. No. 137.) Plaintiff nonetheless suggests that the Court should remand his claims against CDCR to California state court pursuant to 28 U.S.C. section 1441(c)(2). The Court, having considered the arguments made at the hearing and having reviewed the parties' supplemental briefing on this question, finds remand inappropriate in this case.

It is well-established in the Ninth Circuit that a "dismissal based on Eleventh Amendment immunity is not a dismissal for lack of subject matter jurisdiction, but instead rests on an affirmative defense." Elmwood v. Drescher, 456 F.3d 943, 949 (9th Cir. 2006) (internal quotations omitted). The removal statute upon which plaintiff relies for his remand argument, however, does not contemplate that where an affirmative defense bars a federal court from entertaining a claim, a federal court should remand that claim to state court. See 28 U.S.C. § 1447(c) (mandating remand where subject-matter jurisdiction over the case is lacking; not addressing propriety of remand where affirmative defense bars federal court from presiding over claim). Where as here, plaintiff has made no showing that his ability to pursue these claims in state court would be materially prejudiced by a dismissal, dismissal of plaintiff's claims against CDCR is required. See Randy's Trucking Inc. v. City of Shafter, No. 08-CV-00819-OWW-DLB, 2008 WL 5156665, at *3 (E.D. Cal. Dec. 8, 2008).

Because CDCR is not a "person" under 42 U.S.C. section 1983, plaintiff would be unable to successfully litigate his Eighth Amendment claim against CDCR in California state court. See Maldonado v. Harris, 370 F.3d 945, 951 (2004) ("State agencies . . . are not "persons" within the meaning of § 1983, and are therefore not amenable to suit under that statute."); see also Rossco Holdings Inc. v. State of California, 212 Cal.App.3d 642, 661-62 (2004) (State of California and its agencies are not "persons" under 42 U.S.C. section 1983.) Therefore dismissal with prejudice of the Eighth Amendment claim against CDCR is appropriate. CDCR argues that plaintiff would be unable to successfully prosecute his state law negligence claims against CDCR in California state court because he has not complied with the California Tort Claims Act. (Dkt. No. 142 at 3.) Because plaintiff's compliance with that Act is unsettled, dismissal with prejudice of his negligence claims against CDCR would be improper at this time. Accordingly, plaintiff's Eighth Amendment claim against CDCR is DISMISSED with prejudice. Plaintiff's state law claims against CDCR are DISMISSED without prejudice to his ability to bring these claims separately in state court.

3. Eighth Amendment Claim Against the Individual CDCR Defendants

In his FAC, plaintiff alleges that the individual CDCR defendants Zamora, Ellis, Kuersten, and Sepulveda "were aware of Plaintiff's serious medical needs," "[knew] that Plaintiff faced a substantial risk of serious harm," and "fail[ed] to take reasonable steps . . . to obtain necessary and proper medical treatment for Plaintiff's medical conditions." (FAC at ¶¶ 9-12.) The individual CDCR defendants argue that plaintiff offers merely conclusory allegations and a bare recitation of the elements of a deliberate indifference claim. (Dkt. No. 123 at 8-10.) Specifically, they claim that plaintiff offers no factual support for his assertions that defendants knew of his medical issues, failed to act to remedy the situation, or had the ability to do so. (Dkt. No. 123 at 8-10.)

The Court agrees that plaintiff's factual allegations are insufficient to make probable his Eighth Amendment claim against the individual CDCR defendants. Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official violates the Eighth Amendment only when two requirements are met: (1) the deprivation alleged is, objectively, sufficiently serious, and (2) the official is, subjectively, deliberately indifferent to the inmate's health or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). A "serious" medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." Id. The following are examples of indications that a prisoner has a "serious" need for medical treatment: the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).

A prison official exhibits deliberate indifference when he knows of and disregards a substantial risk of serious harm to inmate health. See Farmer, 511 U.S. at 837. The official must both know of "facts from which the inference could be drawn" that an excessive risk of harm exists, and he must actually draw that inference. Id. "A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). Where doctors have chosen one course of action and a prisoner-plaintiff contends that they should have chosen another course of action, the plaintiff "must show that the course of treatment the doctors chose was medically unacceptable under the circumstances . . . and the plaintiff must show that they chose this course in conscious disregard of an excessive risk to plaintiff's health." Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).

Here, plaintiff alleges that the individual CDCR defendants were "aware" of his "serious medical needs," and that he "faced a substantial risk of harm," and they nonetheless failed to take steps to ensure plaintiff was provided "necessary and proper medical treatment." Other than the recitation of the elements of his Eighth Amendment claim, however, plaintiff offers no factual allegations to make his Eighth Amendment claim plausible. For example, although plaintiff alleges that defendants stopped his epidural injections, failed to provide him with pain medication, and did not present him for appointments with doctors (FAC at ¶¶ 18, 20, 22), plaintiff provides no facts to support his assertion that each of the named defendants knew of his serious medical need or that they consciously disregarded a serious risk of harm. By the same token, plaintiff does not specify the role each individual defendant played in the operative factual basis for the alleged Eighth Amendment violation, nor does he state facts to make plausible any inference relating to each defendant's particular role in the alleged wrongdoing. See Twombly, 550 U.S. at 555 (a pleading should give the defendant fair notice of what the claim is and upon what grounds it rests). Even construed in the light most favorable to plaintiff, his conclusory and generalized allegations do not state a claim that he is entitled to relief as to each of the individual CDCR defendants.

For these reasons, the Court finds that plaintiff has failed to state a claim under the Eighth Amendment. This claim is thus DISMISSED without prejudice.

4. State Law Negligence Claims against the Individual CDCR Defendants

Plaintiff next alleges claims for: (1) negligence; and (2) negligence per se pursuant to California Government Code section 845.6 against the individual CDCR defendants. The individual CDCR defendants counter that plaintiff's negligence claim offers only conclusory statements devoid of the facts necessary to properly state a claim. (Dkt. No. 123 at 13-14.) They also argue that plaintiff has failed to allege facts sufficient to state a claim for negligence per se under the statute. (Dkt. No. 123 at 14-16.) The Court considers each claim in turn.

A. Negligence Claim

Under California law, an action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff. United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., 1 Cal.3d 586, 594 (Cal. 1970); 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 732, p. 60.

Plaintiff's negligence claim incorporates by reference all of the allegations in the FAC and includes a recitation of the elements of a negligence claim. (FAC at ¶ 35.) But, as discussed in the section immediately above, plaintiff's allegations amount to little more than conclusory statements of culpability grounded in insufficient factual support and thus, do not demonstrate the requisite plausibility under Iqbal and Twombly. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. Likewise, a bare recitation of the elements of a claim is insufficient to fulfill the pleading requirements. See Twombly, 550 U.S. at 555 (compliance with the pleading standards "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do...."). In order to state successfully a negligence claim, plaintiff must allege specific facts that support an inference that each CDCR defendant's action or inaction comports with the elements of his claim. Because he has not done so, the Court finds that plaintiff's negligence claim does not meet the FRCP Rule 8 pleading standard. Accordingly, this claim is DISMISSED with leave to amend.

B. Negligence Per Se Claim

To support his claim for negligence per se, plaintiff cites to California Government Code section 845.6.

Public entities in California are not liable for tortious injury unless liability is imposed by statute. Cal. Govt. Code § 815. "[S]overeign immunity is the rule in California; governmental liability is limited to exceptions specifically set forth by statute." Cochran v. Herzog Engraving Co., 155 Cal.App.3d 405, 409 (1984). Section 845.6 states in relevant part:

Castaneda v. Dep't of Corr. & Rehab., 212 Cal.App.4th 1051, 1070 (2013) (review denied May 1, 2013).

In order to state a claim under section 845.6, a prisoner must establish three elements: (1) the public employee knew or had reason to know of the need (2) for immediate medical care, and (3) failed to reasonably summon such care. Jett v. Penner, 439 F.3d 1091, 1099 (9th Cir. 2006) (citation omitted). "Liability under section 845.6 is limited to serious and obvious medical conditions requiring immediate care." Watson v. State, 21 Cal.App.4th 836 (1993).

Plaintiff has not alleged facts sufficient to establish that defendants had the requisite knowledge of his need for medical care under the terms of section 845.6. It is nowhere alleged that plaintiff's medical need was obvious or severe and that defendants knew and chose to ignore that need. Rather, plaintiff's condition was chronic and he received regular treatment for his symptoms. Plaintiff may desire different care than what he was provided, but this alone does not meet the standard for relief under section 845.6. As discussed above, although plaintiff alleges that the defendants stopped his epidural injections, failed to provide him with pain medication, and did not present him for appointments with doctors (FAC at ¶¶ 18, 20, 22), plaintiff does not specify which of the individual CDCR defendants committed these acts, or allege what they knew of his condition and when they knew it. The only symptoms plaintiff alleges that he suffered were pressure in his back and back pain. (FAC at ¶ 25.) To the extent that his disc disease manifested in symptoms that were perceivable to the defendants, he would be well-advised to set those symptoms out in any proposed Second Amended Complaint. He must also plead facts making clear the role of each individual CDCR defendant. See Twombly, 550 U.S. at 555 (pleading should give the defendant fair notice of what the claim is and upon what grounds it rests). In light of these deficiencies, the Court concludes that plaintiff has not complied with the pleading standard under FRCP 8(a). For this reason, plaintiff's claim under section 845.6 is DISMISSED without prejudice.

C. California Tort Claims Act

As a final matter, plaintiff has failed to allege that with respect to his state law negligence claims, he has complied with the California Tort Claims Act. Cal. Gov't Code §§ 900-998.3.

The California Tort Claims Act requires, as a condition precedent to suit against a public entity, the timely presentation of a written claim and the rejection of the claim in whole or in part. Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995) (citing Snipes v. City of Bakersfield, 145 Cal.App.3d 861 (1983)). "Where compliance with the Tort Claims Act is required, the plaintiff must allege compliance or circumstances excusing compliance, or the complaint is subject to general demurrer." Id.; see also Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 627 (9th Cir. 1988) (state tort law claims are barred unless presented to public entity before commencing suit) (citing Cal. Gov't Code §§ 905, 945.4, 950.2 (West 1980); Ortega v. O'Connor, 764 F.2d 703, 707 (9th Cir. 1985) (failure to comply with claim-filing requirements imposed by California Torts Claims Act bars pendent state claims), rev'd on other grounds, 480 U.S. 709(1987); Neal v. Gatlin, 35 Cal.App.3d 871, 877-78 (1973) (where public employee was acting within employee's express or implied authority, notwithstanding wrongful nature of the act, complaint based on such act was properly dismissed for failure to allege filing of claim with employing public entity)).

Here, plaintiff's FAC does not mention, much less allege, compliance with California Tort Claims Act procedures. Although plaintiff broadly claims that he has exhausted his administrative remedies (FAC at ¶ 34), that alone is not sufficient. In order for his suit against CDCR and the individual CDCR defendants to proceed here, plaintiff must demonstrate that he presented a written claim to CDCR that was rejected in whole or in part. See Moore v. Thomas, 653 F.Supp.2d 984, 1007 (N.D. Cal. 2009) (discussing the requirements for suing California state entities and employees; citing Snipes, 145 Cal.App.3d 861). Such a claim must be filed with the state entity within 6 months of the date of the incident unless leave to file a late claim is granted. Id. Plaintiff's FAC does not allege compliance with these requirements; nor does it even mention the California Tort Claims Act.

As was stated on the record during the hearing on this Motion, the parties are to meet and confer regarding plaintiff's compliance with the California Tort Claims Act. Upon filing any proposed Second Amended Complaint, plaintiff shall provide a statement concerning the nature and result of the meet and confer.

For these reasons, Plaintiff's state law claims are DISMISSED without prejudice.

5. Injunctive Relief Remedy

Plaintiff seeks an order from this Court "preventing Defendants from denying Plaintiff necessary medical care." (FAC at ¶ 45.) However, plaintiff's FAC does not demonstrate how the relief he requests would remedy his alleged injuries. Plaintiff's FAC appears to request injunctive relief against CDCR and the individual CDCR defendants, but plaintiff is no longer housed in a CDCR facility. (FAC at ¶ 41-46.) The FAC also appears to request injunctive relief against defendant CCA, the operator of the facility where he is currently housed, but CCA has not been served as of the date of this Order. At the hearing on this motion, plaintiff represented that the request for injunctive relief relates solely to defendant CCA, but his FAC does not reflect this fact. Should plaintiff file a Motion for Leave to File a Second Amended Complaint and seek injunctive relief, he must specify to which defendants such relief pertains.

Accordingly, plaintiff's request for injunctive relief is DISMISSED without prejudice.

CONCLUSION

Accordingly, the Motion to Dismiss claims against Defendants G. Ellis, L. Zamora, M. Sepulveda, and M. Kuersten is GRANTED with leave to amend. The Motion to Dismiss claims against Defendant J. Clark Kelso is GRANTED without leave to amend, and the claims against him are DISMISSED with prejudice. The Motion to Dismiss of CDCR is GRANTED without leave to amend. Plaintiff's state law claims against CDCR are DISMISSED without prejudice, and his Eighth Amendment claim against CDCR is DISMISSED with prejudice.

If plaintiff wishes to file a Second Amended Complaint, he must do so as part of a Motion for Leave to Amend, to be filed no later than 30 days after the date of this Order. Any Proposed Second Amended Complaint must fulfill the following requirements:

In addition, plaintiff shall serve defendant CCA no later than 30 days from the date of this Order. Failure to serve CCA by this deadline shall result in dismissal of claims against CCA for failure to timely serve pursuant to Federal Rule of Civil Procedure 4(m).

IT IS SO ORDERED.