1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO G. ROBLES, Case No.: 1:22-cv-00620-KES-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR FAILURE TO 13 v. STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED 14 STEVEN JOHNSON, et al., 14-DAY OBJECTION PERIOD 15 Defendants.

16

17 Plaintiff Antonio G. Robles is appearing pro se and in forma pauperis in this civil rights 18 action. 19 I. INTRODUCTION 20 On September 18, 2025, the Court issued its Second Screening Order. (Doc. 15.) Plaintiff 21 was directed to file a second amended complaint, or a notice of voluntary dismissal, within 21 22 days. (Id. at 9.) 23 On October 17, 2025, when Plaintiff failed to file either an amended complaint or a notice 24 of voluntary dismissal, the undersigned issued Findings and Recommendations to Dismiss Action 25 for Plaintiff’s Failure to Obey Court Orders and Failure to Prosecute. (Doc. 16). Plaintiff was 26 directed to file any objections within 14 days. (Id. at 4.) 27 On October 29, 2025, Plaintiff filed a second amended complaint. (Doc. 17.) 1 for Plaintiff’s failure to obey court orders and failure to prosecute and directed the Clerk of the 2 Court to update Plaintiff’s address of record. (Doc. 18.) The Court advised Plaintiff his second 3 amended complaint would be screened in due course. (Id. at 2.) 4 II. SCREENING REQUIREMENT 5 The Court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 7 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 8 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 9 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 10 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 11 theory. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1990). 12 III. PLEADING REQUIREMENTS 13 A. Federal Rule of Civil Procedure 8(a) 14 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 15 exceptions.” Swierkiewicz v. Sorema N.A.,

(2002). A complaint must contain 16 “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. 17 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 18 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz,

(internal 19 quotation marks & citation omitted). 20 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 21 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556

, 678 (2009) (citing Bell Atl. Corp. v. Twombly,

(2007)). Plaintiff must 23 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 24

(quoting Twombly,

). Factual allegations are accepted as true, but legal 25 conclusions are not.

(citing Twombly,

). 26 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 27 any doubt. Hebbe v. Pliler,

(9th Cir. 2010) (citation omitted). However, “the 1 theories. Neitzke v. Williams,

, 330 n.9 (1989). Furthermore, “a liberal interpretation 2 of a civil rights complaint may not supply essential elements of the claim that were not initially 3 pled,” Bruns v. Nat’l Credit Union Admin.,

, 1257 (9th Cir. 1997) (internal 4 quotation marks & citation omitted), and courts “are not required to indulge unwarranted 5 inferences.” Doe I v. Wal-Mart Stores, Inc.,

(9th Cir. 2009) (internal quotation 6 marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 7 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 8 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted). 9 B. Linkage and Causation 10 Section 1983 provides a cause of action for the violation of constitutional or other federal 11 rights by persons acting under color of state law. See

. To state a claim under 12 section 1983, a plaintiff must show a causal connection or link between the actions of the 13 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 14

(1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 15 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 16 act, participates in another’s affirmative acts, or omits to perform an act which he is legal required 17 to do that causes the deprivation of which complaint is made.” Johnson v. Duffy,

, 18 743 (9th Cir. 1978) (citation omitted). 19 IV. DISCUSSION 20 A. Plaintiff’s Second Amended Complaint 21 Plaintiff names two defendants: Dr. Steven Johnson with Central Coast Eye Group and 22 Dr. Aminesh Petkar with Central Valley Eye Group. (Doc. 17 at 1- 3.) He seeks money damages. 23 (Id. at 5.) 24 B. The Factual Allegations 25 Plaintiff contends Defendant Johnson “should have protected [him from himself] in 26 2019.” (Doc. 17 at 3.) He asserts Johnson told him, “’You might lose the rest of your vision if I 27 do the surgery.’” (Id.) Plaintiff states he “pestered” Johnson “until he finally did the surgery.” 1 was to protect Plaintiff even from himself. (Id.) Plaintiff contends he was left blind after the 2 surgery. (Id.) Later, Plaintiff was examined by Dr. Tawansy1 in Bakersfield (who had performed 3 Plaintiff’s “first and second vitrectomy [surgeries] in 2016 and 2017”); Tawansy told Plaintiff 4 that Defendant Johnson “shouldn’t have done the surgery at all, because 90% of third and fourth 5 vitrectomy [surgeries] fail[] and the patient never gains vision only loses vision.” (Id. at 3-4.) 6 Plaintiff alleges that after the surgery performed by Johnson he was “totally blind” and three 7 months later his left eye “turned blue in color” and “died.” (Id. at 4.)2 8 Next, Plaintiff alleges that about two months later he “was sent to Fresno to clinic named 9 ‘Central Valley Eye Group.’” (Doc. 17 at 4.) Plaintiff’s left retina was examined by Defendant 10 Petkar.3 On that occasion, Plaintiff’s “left eye was blue in color [and] almost closed.” (Id.) Petkar 11 stated to Plaintiff that his eye was “’dead, that’s why it’s blue in color’” and did not recommend 12 “‘another detached retina surgery, a vitrectomy surgery, it’s pointless.’” (Id.) Nevertheless, 13 Plaintiff contends that two weeks later Petkar called him “and explained that … he might be able 14 to regain” some of Plaintiff’s vision.” (Id.) Plaintiff asserts that was a “complete lie,” but that he 15 was “naïve and trusted” the doctor. (Id. at 4-5.) Plaintiff states Defendant “had a kind and humble 16 face,” and asks, “so why did he do the surgery knowing [Plaintiff’s] eye was dead!!!” (Id. at 5.) 17 C. Deliberate Indifference to Serious Medical Needs 18 Plaintiff asserts Eighth Amendment deliberate indifference to serious medical needs 19 claims against the named Defendants. 20 Applicable Legal Standards 21 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 22 prisoner’s] serious medical needs.” Estelle v. Gamble,

(1976). “A medical need 23 1 While Plaintiff named Tawansy as a defendant in his original and first amended complaints (see Doc. 1 at 1-2 & 24 Doc. 12 at 1, 4), he does not do so in his second amended complaint.

25 2 The surgeries referenced are vitrectomies. Vitrectomy is a type of eye surgery used to treat problems of the eye’s retina and vitreous.” See https://www.aao.org/eye-health/treatments/what-is-vitrectomy, American Academy of 26 Ophthalmology, last accessed 11/6/2025.

27 3 Plaintiff does not expressly reference Petkar in his factual allegations; rather he refers to the doctor as “he.” (See Doc. 17 at 4-5.) But because Plaintiff named two physicians as defendants and has separated his claims against each, 1 is serious if failure to treat it will result in ‘“significant injury or the unnecessary and wanton 2 infliction of pain.”’” Peralta v. Dillard,

(9th Cir. 2014) (quoting Jett v. 3 Penner,

(9th Cir. 2006) (quoting McGuckin v. Smith,

, 1059 4 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller,

(9th 5 Cir. 1997) (en banc)). 6 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 7 first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition 8 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 9 the plaintiff must show the defendants’ response to the need was deliberately indifferent.” 10 Wilhelm v. Rotman,

(9th Cir. 2012) (quoting Jett,

11 (quotation marks omitted)). 12 As to the first prong, indications of a serious medical need “include the existence of an 13 injury that a reasonable doctor or patient would find important and worthy of comment or 14 treatment; the presence of a medical condition that significantly affects an individual’s daily 15 activities; or the existence of chronic and substantial pain.” Colwell v. Bannister,

, 16 1066 (9th Cir. 2014) (citation & internal quotation marks omitted); accord Wilhelm,

1122; Lopez v. Smith,

(9th Cir. 2000) (“Examples of serious medical needs 18 include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and 19 worthy of comment or treatment; the presence of a medical condition that significantly affects an 20 individual’s daily activities; or the existence of chronic and substantial pain”). 21 As to the second prong, deliberate indifference is “a state of mind more blameworthy than 22 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 23 safety.’” Farmer v. Brennan,

(1994) (quoting Whitley v. Albers,

, 24 319 (1986)). Deliberate indifference is shown where a prison official “knows that inmates face a 25 substantial risk of serious harm and disregards that risk by failing to take reasonable measures to 26 abate it.” Id. at 847. In medical cases, this requires showing: (a) a purposeful act or failure to 27 respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference. 1 was substantial; however, such would provide additional support for the inmate’s claim that the 2 defendant was deliberately indifferent to his needs.” Jett,

(citing McGuckin, 974 3 F.2d at 1060). 4 Deliberate indifference is a high legal standard. Toguchi v. Chung,

, 1060 5 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the facts from 6 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 7 ‘must also draw the inference.’”

at 1057 (quoting Farmer,

). “‘If a prison 8 official should have been aware of the risk, but was not, then the official has not violated the 9 Eighth Amendment, no matter how severe the risk.’”

(quoting Gibson v. Cnty. of Washoe, 10 Nevada,

(9th Cir. 2002)). 11 To prevail on a deliberate-indifference claim, a plaintiff must also show that harm resulted 12 from a defendant’s wrongful conduct. Wilhelm,

; see also Jett,

; 13 Hallett v. Morgan,

(9th Cir. 2002) (prisoner alleging deliberate indifference 14 based on delay in treatment must show delay led to further injury). 15 Finally, a “private physician or hospital that contracts with a public prison system to 16 provide treatment for inmates performs a public function and acts under color of law for purposes 17 of § 1983.” George v. Sonoma Cnty. Sheriff's Dep't,

(N.D. Cal. 2010) 18 (citing West v. Atkins,

, 56 n. 15 (1988); Lopez v. Dep't of Health Servs.,

881, 883 (9th Cir. 1991)). 20 Analysis 21 Liberally construing the second amended complaint and accepting all facts as true, 22 Plaintiff fails to allege a plausible Eighth Amendment deliberate indifference to serious medical 23 needs claim against Defendants Johnson and Petkar. As the Court noted in its earlier screening 24 order, Plaintiff meets the first prong of the deliberate indifference test. (See Doc. 15 at 9.) But 25 again, Plaintiff fails to demonstrate the second prong of the relevant test: that these Defendants’ 26 response to his serious medical need was deliberately indifferent. Wilhelm,

. 27 As to Defendant Johnson, Plaintiff’s assertion that Johnson “should have protected me 1 to accept. Iqbal, 556 U.S. at 678. Next, the fact Plaintiff “pestered” Johnson “until he finally did 2 the surgery” does not indicate Johnson was deliberately indifferent – according to Plaintiff’s 3 allegations, Johnson advised Plaintiff that the surgery could result in the further loss of Plaintiff’s 4 vision and Plaintiff consented to the procedure. See Drawn v. Castonguay, No. 1:25-cv-00722- 5 JLT-SAB (PC),

, at *3 (E.D. Cal. Sept. 11, 2025) (citing cases; “where an 6 inmate consents to surgery, but later argues that they did not consent to the surgery actually 7 performed, [the inmate] fails to show an Eighth Amendment violation”), F&R adopted,

2897574 (Oct. 10, 2025), appeal filed, No. 25-6807 (9th Cir. Oct. 28, 2025). 9 Additionally, Dr. Tawansy’s opinion that Johnson should not have performed the 2019 10 surgery does not establish Johnson was deliberately indifferent. A difference of opinion between 11 an inmate and prison medical personnel—or between medical professionals—regarding 12 appropriate medical diagnosis and treatment are not enough to establish a deliberate indifference 13 claim. Sanchez v. Vild,

(9th Cir. 1989); Toguchi,

(same). To 14 establish a difference of opinion rising to the level of deliberate indifference, “plaintiff must show 15 that the course of treatment the doctors chose was medically unacceptable under the 16 circumstances.” Jackson v. McIntosh,

(9th Cir. 1996). Plaintiff alleges no such 17 facts that would permit drawing a reasonable inference that Defendants’ conduct was medically 18 unacceptable. To the contrary, Plaintiff’s allegations reflect he was advised of the risks associated 19 with the 2019 procedure and elected to proceed. Notably, Plaintiff’s allegations amount to 20 assertions of negligence or medical malpractice but do not rise to the level of deliberate 21 indifference. Broughton v. Cutter Laboratories,

(9th Cir. 1980) (citing Estelle, 22

); see Anderson v. Cnty. of Kern,

(9th Cir. 1995); Wood v. 23 Housewright,

(9th Cir. 1990).4 24 Concerning Defendant Petkar, Plaintiff fails to state a claim because he pleads no facts 25 permitting a reasonable inference that the surgery performed by Petkar was medically 26 unacceptable under the circumstances. Jackson,

. Additionally, Plaintiff’s assertion 27 4 The Court previously advised Plaintiff regarding the requirements for stating a state law medical malpractice or 1 that Petkar initially recommended against another surgery but then weeks later5 explained to 2 Plaintiff that he (Petkar) “might be able to regain some of” Plaintiff’s vision, but where the 3 surgery did not obtain such a result, does not indicate Petkar acted with a state of mind more 4 blameworthy than negligence or that Petkar knew Plaintiff faced a substantial risk of serious harm 5 and disregarded that risk by failing to take reasonable measure to abate it. Farmer,

835, 847. And, again, negligence or medical malpractice do not state an Eighth Amendment 7 deliberate indifference claim. Estelle,

; Broughton,

. Plaintiff’s 8 allegations merely establish Plaintiff’s disagreement with the treatment he received from 9 Defendant Petkar. Sanchez,

. 10 Further Leave to Amend Would be Futile 11 Because Plaintiff’s second amended complaint is deficient for the same reasons as those 12 articulated in the Court’s original and first screening orders (see Docs. 7 & 15) and because 13 Plaintiff has failed to remedy those deficiencies, the Court assesses that Plaintiff cannot cure his 14 pleadings and, thus, that leave to amend would be futile. See Hartman v. CDCR,

, 15 1129-30 (9th Cir. 2013) (affirming dismissal of first amended complaint and finding leave to 16 amend futile where complaint’s allegations belied plaintiff’s entitlement to relief). 17 V. CONCLUSION AND RECOMMENDATION 18 Based on the above, this Court HEREBY RECOMMENDS this action be dismissed, 19 without leave to amend, based on Plaintiff’s failure to state a claim upon which relief can be 20 granted. 21 These Findings and Recommendations will be submitted to the United States District 22 Judge assigned to this case, pursuant to the provisions of

(b)(l). Within 14 days 23 after being served with a copy of these Findings and Recommendations, a party may file written 24 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 25

26 5 Plaintiff’s assertion that Petkar told him his eye was “dead” conflicts with Plaintiff’s assertions relating to Defendant Johnson. In asserting his claim against Johnson, Plaintiff alleges that three months after Johnson 27 performed the surgery, Plaintiff’s “eye turned blue in color” and his “eye died,” whereas Plaintiff alleges he saw Petkar “about two months after” the Johnson procedure. In other words, the timing of Plaintiff’s assertion that his eye 1 | Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without 2 | leave of Court and good cause shown. The Court will not consider exhibits attached to the 3 | Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the 4 | exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 5 || reference the exhibit with specificity. Any pages filed in excess of the 15-page limitation may be 6 | disregarded by the District Judge when reviewing these Findings and Recommendations under 28 7 | US.C. § 636(b)(1)(C). A party’s failure to file any objections within the specified time may result 8 | in the waiver of certain rights on appeal. Wilkerson v. Wheeler,

(9th Cir. 2014). 9 | ITIS SO ORDERED. 10 Dated: _ November 7, 2025 | Ww Vv Ry 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28