1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CESAR AREVALO, Case No. 2:22-cv-00774-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 J. PALACIOUS, et al., 15 Defendants. 16 17 18 Plaintiff, a state prisoner, brings this

action asserting Eighth 19 Amendment claims of failure to protect and medical indifference against defendants J. Palacious, 20 K. Jackson, J. Robinson, T. Gorman, D. Earls, M. Barrios, C. Eze, and J. Lynch. ECF No. 11. 21 As explained below, none of his allegations are sufficient to proceed to service. Plaintiff will be 22 given the opportunity to amend, should he so choose. 23 Screening and Pleading Requirements 24 A federal court must screen the complaint of any claimant seeking permission to proceed 25 in forma pauperis. See

(e). The court must identify any cognizable claims and 26 dismiss any portion of the complaint that is frivolous or malicious, fails to state a claim upon 27 28 1 which relief may be granted, or seeks monetary relief from a defendant who is immune from such 2 relief.

3 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 4 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 5 face,” Bell Atl. Corp. v. Twombly,

(2007). The plausibility standard does not 6 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal,

(2009). If the allegations “do not permit the court to infer more than the mere 8 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 9 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr.,

, 10 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 11 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc.,

, 1264 12 n.2 (9th Cir. 2006) (en banc) (citations omitted). 13 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404

, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 15 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 16 would entitle him to relief.” Hayes v. Idaho Corr. Ctr.,

(9th Cir. 2017). 17 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 18 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin.,

, 19 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents,

(9th Cir. 1982)). 20 Plaintiff’s Allegations 21 At all times relevant to this action, plaintiff was housed at California State Prison, 22 Sacramento (“CSP-Sac”). Plaintiff alleges that correctional officers Gorman, Barrios, and Eze 23 failed in their duties to monitor the dayroom on February 22, 2022, when plaintiff was attacked 24 by three inmates at approximately 7:20 p.m. ECF No. 11 at 30-33. When the officers arrived, 25 they found plaintiff bleeding from his chest and head, and complaining of pain and difficulty 26 breathing. The officers alerted a “medical emergency response.” Id. at 33. After the inmates 27 were separated, plaintiff was taken to the rotunda where officers Palacios, Earl, and Robinson 28 questioned him and took pictures of his injuries. Between 7:27 p.m. and 7:31 p.m., psych tech 1 Jackson evaluated plaintiff and made note of a puncture wound to the chest. Plaintiff was then 2 taken to the Treatment and Triage Area (“TTA”) whereupon he was ordered transferred to an 3 outside hospital. Although it is not clear when plaintiff left the prison, an officer was assigned to 4 transport him to the hospital at 8:00 p.m. Plaintiff arrived at U.C. Davis Medical Center at 9:18 5 p.m. with a “penetrating wound of the heart” and underwent emergency surgery. 6 Discussion 7 A. Failure to Protect 8 Plaintiff accuses Gorman, Barrios, and Eze of failing to protect him from the assault by 9 other inmates. As pled, plaintiff does not state an Eighth Amendment failure to protect claim, 10 which requires a showing that (1) the deprivation alleged is, objectively, sufficiently serious; and 11 (2) the prison official is, subjectively, deliberately indifferent to inmate health or safety. Farmer 12 v. Brennan,

(1994). A prison official is deliberately indifferent if he knows of 13 and disregards an excessive risk to inmate health or safety by failing to take reasonable steps to 14 abate it.

. Plaintiff has not alleged that these defendants were aware of a sufficiently 15 serious danger to plaintiff’s health or safety when they were not present to monitor the dayroom. 16 At most, plaintiff’s allegations suggest negligence, which is not actionable. This claim is 17 therefore subject to dismissal. 18 B. Medical Indifference 19 Plaintiff next accuses Gorman, Barrios, and Eze, as well as Palacios, Earl, Robinson, and 20 Jackson, of medical indifference for failing to send him to a hospital immediately. Instead, and in 21 the aftermath of the assault, they questioned plaintiff, took pictures of his injuries, and took him 22 to the TTA. According to plaintiff, these defendants “were well aware of plaintiff’s life 23 threatening injury(s).” ECF No. 11 at 26. He states that his injuries warranted emergency care 24 that could not be provided at the TTA, and that the delay caused him to suffer greater pain than 25 necessary. 26 To allege a claim of medical indifference, plaintiff must show he had a serious medical 27 need and defendants were deliberately indifferent to that need. A medical need is serious “if the 28 failure to treat the prisoner’s condition could result in further significant injury or the 1 ‘unnecessary and wanton infliction of pain.’” McGuckin v. Smith,

(9th Cir. 2 1992), overruled on other grounds by WMX Techs., Inc. v. Miller,

(9th Cir. 1997) 3 (en banc). Deliberate indifference is established only where the defendant subjectively “knows of 4 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung,

, 5 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 6 Deliberate indifference can be established “by showing (a) a purposeful act or failure to respond 7 to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett v. 8 Penner,

(9th Cir. 2006) (citation omitted). Civil recklessness (failure “to act 9 in the face of an unjustifiably high risk of harm that is either known or so obvious that it should 10 be known”) is insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511

, 836-37 & n.5 (1994) (citations omitted). 12 Once again, plaintiff fails to state a viable claim. For one, the delay was marginal. 13 Plaintiff alleges that he was found at 7:20 p.m., psych tech Jackson conducted a medical 14 evaluation between 7:27 p.m. and 7:31 p.m., and an officer was assigned to transfer plaintiff to 15 the outside hospital at 8:00 p.m. In that time, plaintiff was removed from the dayroom; 16 interviewed by Palacios, Earl, and Robinson; medically examined by Jackson; transferred to the 17 TTA; medically examined again at the TTA; and, lastly, approved for an emergency transfer to 18 the hospital. What plaintiff describes as a “delay” appears to be correctional staff investigating 19 the assault and providing care until the severity of plaintiff’s condition became known, at which 20 point he was immediately transferred to a hospital. 21 Also problematic for plaintiff is that there are no facts upon which it can be inferred that 22 defendants “were well aware” of the severity of plaintiff’s condition. While plaintiff shows that 23 these defendants saw a puncture wound on his chest, there is no showing that they knew this was 24 a life-threatening injury requiring emergency treatment. In other words, it is not necessarily the 25 case that a visible puncture wound in the chest area constitutes a life-threatening injury. 26 Regardless, when psych tech Jackson noted the puncture wound to the chest, he had plaintiff 27 transferred to the TTA, whereupon plaintiff was transferred to a hospital for emergency treatment. 28 These facts do not suggest deliberate indifference. 1 Finally, plaintiff brings a claim against defendant Lynch, warden of CSP-Sac, for failing 2 | to implement a policy or to provide adequate medical staff to provide adequate medical care at 3 | the institution. Because I find that plaintiff has not alleged a constitutional violation, plaintiffs 4 | derivative claim against Lynch must also be dismissed. 5 C. Leave to Amend 6 Plaintiff may file a second amended complaint. He is advised that the second amended 7 | complaint will supersede the current one. See Lacey v. Maricopa Cnty.,

, 907 n.1 8 | (9th Cir. 2012) (en banc). This means that the second amended complaint will need to be 9 | complete on its face without reference to the prior pleading. See E.D. Cal. Local Rule 220. Once 10 | an amended complaint is filed, the current complaint no longer serves any function. Therefore, in 11 | an amended complaint, as in an original complaint, plaintiff will need to assert each claim and 12 | allege each defendant’s involvement in sufficient detail. The second amended complaint should 13 | be titled “Second Amended Complaint” and refer to the appropriate case number. 14 Conclusion 15 Accordingly, it is ORDERED that: 16 1. Within thirty days from the service of this order, plaintiff may file a second amended 17 | complaint. If he does not, I will recommend that this action be dismissed. 18 2. Failure to comply with this order may result in the dismissal of this action. 19 3. The Clerk of Court is directed to send plaintiff a complaint form. 20 IT IS SO ORDERED. 22 ( q Sty - Dated: _ August 24, 2023 ow—— 23 JEREMY D,. PETERSON UNITED STATES MAGISTRATE JUDGE

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