1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RIGOBERTO SALIDO, Case No.: 25-cv-0502-AJB (MMP) CDCR #AY-0083, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT WITHOUT vs. LEAVE TO AMEND PURSUANT TO 14

(e)(2)(B) & 1915A(b)

15 WARDEN JAMES HILL, PLANT 16 MANAGER STALLINGS, and JOHN DOES 1-10, 17 Defendants. 18 19 20 On February 28, 2025, Plaintiff Rigoberto Salido, a state prisoner proceeding pro se, 21 filed a civil rights Complaint pursuant to

. ECF No. 1. Plaintiff alleged 22 that while confined at the R.J. Donovan Correctional Facility (“RJD”) in San Diego, 23 California, he fell and was injured on a negligently maintained walkway. See

Plaintiff 24 also filed a Motion to proceed in forma pauperis (“IFP”). ECF No. 2. 25 On March 26, 2025, the Court granted Plaintiff leave to proceed IFP and dismissed 26 the Complaint with leave to amend pursuant to

(e)(2) & 1915A(b), which 27 require sua sponte dismissal of a prisoner’s IFP complaint, or any portion of it, which is 28 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 1 immune from relief. ECF No. 5. The Court found the Complaint failed to plausibly allege 2 the Defendants knew of and deliberately disregarded an excessive risk of harm to Plaintiff 3 in navigating the walkway as necessary to state an Eighth Amendment claim, and failed to 4 plausibly allege the Defendants took any action by reason of Plaintiff’s disability as 5 necessary to state a claim under the Americans with Disabilities Act (“ADA”).

. 6 The Court declined to accept supplemental jurisdiction over the state law negligence claim. 7

. Plaintiff was notified of the deficiencies of his pleading and granted leave to 8 amend.

. He has now filed a First Amended Complaint (“FAC”). ECF No. 6. 9 The first 7 pages of the FAC, which include the factual allegations, are a photocopy 10 of the first 7 pages of the original Complaint. Compare ECF No. 1 at 1-7 with ECF No. 6 11 at 1-7. The remaining two pages of the FAC repeat the argument in the original Complaint, 12 which was addressed by the Court in the prior screening order, that because the Defendants 13 were aware of the dangerous condition of the walkway through other incidents of inmate 14 injuries they were on notice it presented an excessive risk to Plaintiff, and their failure to 15 adequately repair and maintain it shows deliberate indifference to that risk. ECF No. 6 at 16 8-9. For the reasons set forth herein, because the FAC generally repeats the factual 17 allegations in the original Complaint without curing the previously identified pleading 18 deficiencies and it is now clear Plaintiff is unable to plausibly allege a federal constitutional 19 violation, the FAC is dismissed without further leave to amend. 20 I. Screening pursuant to

(e)(2) & 1915A(b) 21 A. Standard of Review 22 Because Plaintiff is a prisoner proceeding IFP, his FAC requires a pre-Answer 23 screening pursuant to

(e)(2) & 1915A(b). Under these statutes, the Court 24 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous, 25 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 26 Lopez v. Smith,

(9th Cir. 2000) (en banc) (discussing 28 U.S.C. 27 § 1915(e)(2)); Rhodes v. Robinson,

(9th Cir. 2010) (discussing 28 28 U.S.C. § 1915A(b)). 1 “The standard for determining whether a plaintiff has failed to state a claim upon 2 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 3 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter,

(9th Cir. 2012); see also Wilhelm v. Rotman,

(9th Cir. 5 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 6 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule 7 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to state 8 a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) 9 (internal quote marks omitted). 10 B. Allegations in the Complaint 11 Plaintiff once again alleges he is disabled within the meaning of the ADA and that 12 at about 9:00 a.m. on March 1, 2024, he was walking to his work assignment on a paved 13 walking path which is “very poorly maintained with cracks, potholes, uneven and rough 14 surfaces,” when one of the front tires on his ADA mobility assistance walker became 15 lodged in a deep pothole. ECF No. 6 at 4. His walker ceased forward momentum causing 16 him to flip forward and fall hard on the pavement, injuring his left hip.

Plaintiff states 17 the impact “caused a nearly yearlong regression in his ongoing physical therapy by 18 reinjuring his back.”

He had only recently been able to use a walker rather than a 19 wheelchair, and the injury forced him back into his wheelchair for almost a year.

20 Although the track was repaired in February 2025, “large holes still exist, rough surfaces 21 and rocks litter the surface, causing ongoing obstacles and hazards for Plaintiff.” Id. at 6. 22 Plaintiff claims Defendants RJD Warden Hill, RJD Plant Manager Stallings, and 23 John Does 1-10, negligently breached their duty of care to maintain the walkway in a safe 24 condition, which also violated his Eighth Amendment right to be incarcerated free of 25 dangerous conditions. Id. at 5-9. Plaintiff presents as exhibits: (1) five declarations from 26 other inmates injured by falling or nearly falling on the walkway, (2) his medical records, 27 (3) his inmate grievance complaining of his March 1, 2024 fall which was granted and 28 indicates the prison was in the process of making repairs, and (4) an inmate grievance from 1 another inmate regarding a February 23, 2024 incident where his wheelchair hit a pothole 2 and he was injured. ECF No. 6-1 at 3-41. 3 C. Analysis 4 Plaintiff claims Defendants negligently failed to keep the walkway in good repair, 5 and that their actions caused him to fall and injure his hip in February 2004 and set back 6 physical therapy for his back, returning him to his wheelchair from a walker. ECF No. 6 7 at 4, 7-9. He claims Defendants were aware of the walkway’s unsafe condition through 8 complaints by other prisoners and inmate grievances, and that their response to his inmate 9 grievance that “it appears Demand Maintenance Work Order No. 603572 was submitted, 10 and ongoing efforts to fix the problem are occurring,” combined with their inadequate 11 repair efforts in February 2025, shows deliberate indifference to the risk it posed. ECF No. 12 6-1 at 8-9. 13 “[A] prison official violates the Eighth Amendment when two requirements are met. 14 First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v. 15 Brennan,

(1994), quoting Wilson v. Seiter,

(1991). 16 Second, Plaintiff must allege the prison official had a “sufficiently culpable state of mind,” 17 that is, “one of ‘deliberate indifference’ to inmate health or safety.”

quoting Wilson, 18

. A prison official must “know[] of and disregard[] an excessive risk to 19 inmate health or safety; the official must both be aware of facts from which the inference 20 could be drawn that a substantial risk of serious harm exists, and he must also draw the 21 inference.” Id. at 837. 22 Although Plaintiff plausibly alleges Defendants were aware of the condition of the 23 walkway through inmate grievances and complaints from other persons who were injured, 24 and were aware it needed repair, the FAC once again does not plausibly allege any 25 Defendant actually drew an inference that the condition of the walkway posed a substantial 26 risk of serious harm to Plaintiff. There are once again no factual allegations showing 27 Defendants drew such an inference, such as admissions in the grievances or lawsuits that 28 they knew the walkway presented a substantial risk of serious harm, as opposed to 1 acknowledging it needed repairs and indicating that repairs were being made or scheduled 2 to be made. Although Plaintiff maintains that Defendants have continued to negligently 3 maintain the walkway because the repairs made in February 2025 are inadequate in that it 4 still contains potholes and rough, uneven services, and that they know its condition has and 5 continues to present tripping and falling hazards, there remains no factual allegation that 6 any Defendant was aware of facts from which they could draw an inference that the 7 walkway posed a substantial risk of serious injury, as opposed to merely being aware it 8 was poorly maintained with cracks, potholes, uneven and rough surfaces, conditions which 9 Plaintiff attributes to their negligence. See Farmer,

(a prison official “must 10 both be aware of facts from which the inference could be drawn that a substantial risk of 11 serious harm exists, and he must also draw the inference.”);

(“[D]eliberate 12 indifference describes a state of mind more blameworthy than negligence” and “more than 13 ordinary lack of due care for the prisoner’s interests or safety.”) 14 Plaintiff was instructed in the Court’s prior dismissal order that to proceed with an 15 Eighth Amendment claim based on his fall, he must set forth facts which plausibly allege 16 a Defendant actually drew an inference that the walkway posed a substantial risk of 17 Plaintiff falling, as opposed to simply alleging the walkway presented trip and slip hazards 18 which could be avoided. ECF No. 5 at 5-6, citing Farmer,

, 837 and Levy 19 v. Department of Corrections of Washington,

, at *2 (W.D. Wash. May 20 1, 2013) (finding no Eighth Amendment violation from trip and fall in sprinkler hole on 21 recreation yard); Coleman v. Sweetin,

, 764 & n.7 (5th Cir. 2014) (collecting 22 cases and noting “prisoner slip-and-fall claims almost never serve as a predicate for 23 constitutional violations.”) Plaintiff has instead merely repeated his allegations that 24 Defendants were aware he and other inmates were injured as a result of the walkway’s 25 condition, and that they have attempted to fix the walkway but have negligently failed to 26 do so to his satisfaction. He once again fails to include factual allegations plausibly 27 alleging Defendants drew an inference the walkway is unable to be traversed safely or 28 avoided to the point that their efforts to repair it represent deliberate indifference to a 1 substantial risk of serious injury Plaintiff was unable to avoid. See Osolinski v. Kane, 92

(9th Cir. 1996) (prisoner failed to plead exacerbating conditions rendered 3 him unable to provide for his own safety as necessary to state an Eighth Amendment 4 claim); Frost v. Agnos,

(9th Cir. 1998) (holding that “[s]lippery floors 5 without protective measures [such as handicap bars] could create a sufficient danger” when 6 coupled with allegations that an inmate using crutches had repeatedly fallen and injured 7 himself on shower floors). 8 Plaintiff’s Eighth Amendment deliberate indifference claim is dismissed sua sponte 9 pursuant to

(e)(2) & 1915A(b) for failure to state a claim. Watison, 668 10 F.3d at 1112; Wilhelm,

. 11 Plaintiff has abandoned his ADA claim from the original Complaint because he has 12 not included it in the FAC. He was instructed in the prior dismissal order that an amended 13 pleading supersedes the original and that claims dismissed with leave to amend which are 14 not re-alleged in an amended pleading may be considered waived. ECF No. 5 at 8. In any 15 case, Plaintiff has not cured the defect of pleading an ADA claim identified in the prior 16 dismissal order because he once again has failed to plausibly allege Defendants’ actions 17 were taken by reason of his disability. Id. at 6. 18 As to the state law negligence claim, the Court once again declines to exercise 19 supplemental jurisdiction over this supplemental state law claim because it “has dismissed 20 all claims over which it has original jurisdiction.”

(c); Sanford v. Member 21 Works, Inc.,

(9th Cir. 2010) (“[I]n the usual case in which all federal- 22 law claims are eliminated before trial, the balance of factors to be considered under the 23 pendent jurisdiction doctrine . . . will point toward declining to exercise jurisdiction over 24 the remaining state-law claims.”) The dismissal of this action is without prejudice to 25 Plaintiff to pursue his negligence claim in state court. 26 D. Leave to Amend 27 In light of Plaintiff’s pro se status, the Court granted him leave to amend his original 28 Complaint to attempt to cure the pleading defects identified above. However, Plaintiff has 1 || presented the same factual allegations, and it is now clear he is unable to plausibly allege 2 ||a federal constitutional violation arising from his fall on the walkway. See Devereaux v. 3 || Abbey,

(9th Cir. 2001) (

“creates a private right of 4 |/action against individuals who, acting under color of state law, violate federal 5 || constitutional or statutory rights.”) Accordingly, the Court dismisses this action without 6 further leave to amend. See Rosati v. Igbinoso,

(9th Cir. 2015) (“A 7 || district court should not dismiss a pro se complaint without leave to amend [pursuant to 28 8 |}U.S.C. § 1915(e)(2)(B)Gi)] unless it is absolutely clear that the deficiencies of the 9 || complaint could not be cured by amendment.”’) (internal quote marks omitted). 10 Conclusion and Orders 11 Good cause appearing, the Court DISMISSES all claims against all Defendants in 12 || the First Amended Complaint without leave to amend pursuant to 28 U.S.C. 8§ 1915(e)(2) 13 || & 1915A(b). The Clerk of Court will enter final judgment accordingly and close the file. 14 IT IS SO ORDERED. 15 || Dated: May 7, 2025 © 16 Hon, Anthony J.Battaglia 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 7 □□