1 2 3 IN THE UNITED STATES DISTRICT COURT 4 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 SHELTON EAVES, No. C 20-6808 WHA (PR) 8 Plaintiff, ORDER OF DISMISSAL 9 v. 10 ALAMEDA COUNTY SHE RIFF DEPARTMENT; R. SLAUGHTER 11 Defendants. 12 / 13 Plaintiff is an inmate in the Alameda County Jail who filed this pro se complaint under 14

. He complained that jail officials did not immediately clean up after an 15 inmate with COVID -19 had fallen and bled on the floor. The complaint was dismissed with 16 leave to amend because plaintiff’s allegations, even when liberally construed in his favor, failed 17 to satisfy three of the four elements of the claim that such conditions violated his constitutional 18 right to due process. See Castro v. Cnty. of Los Angeles,

(9th Cir. 19 2016) (en banc). 20 The elements of a pretrial detainee’s due process failure-to-protect claim against an 21 individual officer are: 22 (1) The defendant made an intentional decision with respect to the 23 conditions under which the plaintiff was confined; 24 (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; 25 (3) The defendant did not take reasonable available measures 26 to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk 27 involved -- making the consequences of the defendant’s conduct obvious; and 28 (4) By not taking such measures, the defendant caused the 1 plaintiff’s injuries. 2

(footnote omitted). With respect to the third element, the defendant’s conduct must be 3 objectively unreasonable, a test that will necessarily turn on the facts and circumstances of each 4 particular case.

The original complaint did not satisfy the second, third and fourth 5 elements. 6 Plaintiff has filed a timely amended complaint which has not corrected the deficiencies 7 of his original complaint. Specifically, plaintiff has not alleged that he has suffered any 8 cognizable injury. He has not alleged that he got sick or contracted COVID-19, only that he 9 fears he might in the future. But the incident occurred on July 17, 2020, and if he had 10 contracted an illness from it, he would have done so long before the date he prepared the 11 amended complaint, i.e. December 17, 2020. Plaintiff may not, moreover, obtain the relief he 12 seeks — money damages — based solely upon his fear in the absence of a physical injury. See 13 42 U.S.C. § 1997e(e) (prisoners may recover for mental or emotional injuries suffered while 14 incarcerated only if they first show that they suffered a physical injury). 15 The amended complaint also fails to correct the other deficiencies noted in the original 16 complaint. Plaintiff does not allege or cite evidence that COVID-19 can be transmitted by 17 blood, let alone to a person who does not come into contact with the blood, such as Plaintiff in 18 this instance. Plaintiff’s allegations also do not change the allegations in the original complaint 19 that jail officials relied upon a professional “hazmat” to clean up the area, which was a 20 reasonable response to a potential health threat. The allegations in the amended complaint 21 establish that defendants were not deliberately indifferent, did not expose him to an 22 unconstitutionally unsafe condition, and did not cause him any cognizable injury. Accordingly, 23 the amended complaint fails to state a cognizable claim for relief. 24 The case is DISMISSED. The clerk shall enter judgment and close the file. 25 IT IS SO ORDERED. 26 Dated: January 2 1 , 2021. 27 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 28