Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID D. HARRIS, Case No. 25-cv-1574-BAS-DDL 12 Plaintiff, ORDER DISMISSING SECOND 13 v. AMENDED COMPLAINT PURSUANT TO 28 U.S.C. 14 NURSE RICHMOND, et al., §§ 1915(e)(2) & 1915A(b) WITHOUT 15 Defendants. LEAVE TO AMEND 16 17 18 Plaintiff David D. Harris is a state inmate proceeding pro se with this civil rights 19 action filed pursuant to 42 U.S.C. § 1983. On November 21, 2025, the Court granted 20 Plaintiff leave to proceed in forma pauperis and dismissed the Complaint with leave to 21 amend for failure to state a claim. (ECF No. 8.) Plaintiff was notified of the pleading 22 deficiencies and subsequently filed a First Amended Complaint which the Court also found 23 failed to state a claim. (ECF Nos. 9, 10.) Plaintiff was granted another opportunity to amend 24 and has now filed a Second Amended Complaint (“SAC”). (ECF No. 11.) 25 I. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 26 A. Standard of Review 27 Because Plaintiff is a prisoner proceeding in forma pauperis, his SAC requires a pre- 28 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua 1 sponte dismiss a prisoner’s in forma pauperis complaint, or any portion of it, which is 2 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 3 immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (28 U.S.C. 4 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. 5 § 1915A(b)). 6 “The standard for determining whether a plaintiff has failed to state a claim upon 7 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 8 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 9 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 10 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 11 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 13 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 14 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 15 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who, 16 acting under color of state law, violate federal constitutional or statutory rights.” Devereaux 17 v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a source of 18 substantive rights, but merely provides a method for vindicating federal rights elsewhere 19 conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks 20 omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 21 secured by the Constitution and laws of the United States, and (2) that the deprivation was 22 committed by a person acting under color of state law.” Tsao v. Desert Palace, Inc., 698 23 F.3d 1128, 1138 (9th Cir. 2012). 24 B. Allegations in the SAC 25 Plaintiff alleges in the SAC, as he did in the two prior versions of his complaint, that 26 on May 10, 2025, at 1:15 p.m., while incarcerated at the R. J. Donovan Correctional Facility 27 (“RJD”) in San Diego, California, in the Enhanced Outpatient level of care, he was 28 suffering from auditory hallucinations which caused him to be suicidal and to cut his wrist 1 and forearm; he was admitted to the RJD crisis bed unit. (ECF No. 11 at 1-2.) He had also 2 attempted suicide by cutting the same wrist and forearm on May 5 and May 7; Plaintiff 3 states that he has made 90 suicide attempts since 2018. (Id. at 2-4; ECF No. 11-1 at 1-5.) 4 Plaintiff alleges that Defendant Nurse Richmond was immediately notified by the duty 5 psych tech that he had cut himself and was in pain, and she notified a doctor 8 minutes 6 later. (ECF No. 11 at 2-3.) Plaintiff was in pain and still bleeding when Nurse Richmond 7 arrived to treat him 20 minutes after he injured himself. (Id.) 8 Nurse Richmond attempted to dress Plaintiff’s wound but was unable to do so, and 9 the wound would not stop bleeding. (Id. at 3.) Plaintiff states that he is anemic and was 10 losing blood at an alarming rate. (Id.) He was sent to an outside hospital where he was 11 given blood and pain medication, and his wound was sutured and the bleeding stopped. 12 (Id.) “Plaintiff maintains that he could have been sutured here by Dr. Blaisdell instead of 13 risking [his] life, considering how bad it was bleeding, R.N. Richmond and Dr. Blaisdell 14 knew how much pain I was in and how bad I was bleeding.” (Id.) 15 Plaintiff claims that because Nurse Richmond called Defendant Dr. Blaisdell before 16 she examined him, based merely on what she was told by the duty psych tech, that she must 17 have been told the injury was serious, “because they do not call the doctor for nothing.” 18 (Id. at 4.) He contends Nurse Richmond gave Dr. Blaisdell a “blind assessment,” upon 19 which Dr. Blaisdell relied in ordering Plaintiff taken to an outside hospital, and was not 20 given any pain medication until he was at the hospital. (Id. at 4.) Plaintiff was not taken to 21 an outside hospital on the prior two occasions he cut himself, with response times of 2 22 minutes and 8 minutes, and therefore claims the delay in treatment on this occasion, 20 23 minutes for Nurse Richmond to respond and another 30 minutes to be taken to the hospital, 24 evinced a deliberate indifference to a serious medical need in violation of the Eighth 25 Amendment. (Id. at 4-6.) 26 C. Discussion 27 The Eighth Amendment’s prohibition on the infliction of cruel and unusual 28 punishment creates an “obligation to provide medical care for those whom it is punishing 1 by incarceration.” Estelle v. Gamble, 429 U.S. 97, 101–03 (1976). “[A] prison official 2 violates the Eighth Amendment when two requirements are met. First, the deprivation 3 alleged must be, objectively, ‘sufficiently serious.’” Farmer v. Brennan, 511 U.S. 825, 834 4 (1994). Second, Plaintiff must allege the prison official he seeks to hold liable had a 5 “‘sufficiently culpable state of mind’ . . . [T]hat state of mind is one of ‘deliberate 6 indifference’ to inmate health or safety.” Id. A prison official can be held liable only if he 7 “knows of and disregards an excessive risk to inmate health and safety”; he “must both be 8 aware of facts from which the inference could be drawn that a substantial risk of serious 9 harm exists, and he must also draw the inference.” Id. at 837. “[I]ndicia of a ‘serious’ 10 medical need include (1) the existence of an injury that a reasonable doctor would find 11 important and worthy of comment or treatment, (2) the presence of a medical condition 12 that significantly affects an individual’s daily activities, and (3) the existence of chronic or 13 substantial pain.” Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994). 14 “Deliberate indifference ‘may appear when prison officials deny, delay or 15 intentionally interfere with medical treatment.’” Colwell v. Bannister, 763 F.3d 1060, 1066 16 (9th Cir. 2014) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). 17 Deliberate indifference can also be shown where the chosen course of medical treatment 18 was “medically unacceptable under the circumstances” and chosen “in conscious disregard 19 of an excessive risk to the prisoner’s health.” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th 20 Cir. 2004). However, allegations of inadequate medical treatment, medical malpractice, or 21 even gross negligence by themselves do not rise to the level of an Eighth Amendment 22 violation. See Farmer, 511 U.S. at 835 (“[N]egligen[ce] in diagnosing or treating a medical 23 condition” does not amount to deliberate indifference. (quoting Estelle, 429 U.S. at 106)). 24 Plaintiff was instructed in both of the Court’s prior dismissal Orders that if he wished 25 to proceed with an Eighth Amendment deliberate indifference claim against either Nurse 26 Richmond or Dr. Blaisdell, he must set forth factual allegations which plausibly suggest 27 they knew of and disregarded an excessive risk to his health and safety by showing they 28 were “aware of facts from which the inference could be drawn” that he faced “a substantial 1 risk of serious harm” in the manner in which they provided medical care. (ECF No. 8 at 6; 2 ECF No. 10 at 3-4.) Plaintiff has once again failed to do so. 3 Plaintiff alleges that Nurse Richmond was immediately notified of his condition by 4 the duty psych tech, and, based on what she was told, notified a doctor 8 minutes later. 5 (ECF No. 11 at 2-4.) He alleges she did not attempt to dress his wound until 20 minutes 6 after he injured himself, and that he was in pain and bleeding while waiting, which, being 7 anemic, posed a risk. (Id.) However, there are once again no allegations that Nurse 8 Richmond was aware of facts from which an inference could be drawn that he faced a 9 substantial risk of serious harm from the 20-minute delay in attempting and failing to dress 10 his wound. Rather, she notified a doctor several minutes after Plaintiff injured himself 11 based on the report of the psych tech on duty, and the doctor determined that Plaintiff 12 needed to be treated at an outside hospital, a decision which, even if it was made without 13 first examining Plaintiff, turned out to be necessary because Nurse Richmond was unable 14 to stop the bleeding and dress the wound. 15 There are once again no allegations suggesting Plaintiff was not monitored or 16 stabilized by medical staff during the delay. Nor are there any allegations that the 20- 17 minute delay caused any injury. Although Plaintiff claims his wounds were treated at the 18 prison after his two most recent suicide attempts, there are no allegations that the injuries 19 he sustained in this attempt were the same. In fact, he indicates that the wounds from those 20 attempts were in the same area as his most recent wounds, potentially complicating the 21 ability to suture the new wounds at the prison. (See ECF No. 1-1 at 1-3.) 22 The allegation that Dr. Blaisdell made the decision to send him to the hospital based 23 on Nurse Richmond’s “blind assessment,” which was based on what she was told by the 24 duty psych tech, rather than examining Plaintiff personally, does not plausibly allege Dr. 25 Blaisdell was aware of facts from which he could have drawn an inference that failing to 26 examine Plaintiff in person prior to ordering him sent to a hospital deliberately disregarded 27 a substantial risk to his health, constituted inadequate medical treatment, or caused any 28 harm. See Colwell, 763 F.3d at 1068 (“A difference of opinion between a physician and 1 ||the prisoner—or between medical professionals—concerning what medical care is 2 ||appropriate does not amount to deliberate indifference.”); Toguchi, 391 F.3d at 1058 3 || (discussing that a disagreement over the necessity or extent of medical treatment does not 4 show deliberate indifference). To the extent Plaintiff claims that Dr. Blaisdell should have 5 || sutured his wounds at the hospital once Nurse Richmond was unable to do so, he does not 6 || plausibly allege Dr. Blaisdell would have been successful where Nurse Richmond failed. 7 Iqbal, 556 U.S. at 678 (stating that the “mere possibility of misconduct” falls short of 8 ||meeting the plausibility standard). Plaintiff once again fails to plausibly allege he was 9 || injured by the delay in Nurse Richmond attempting and failing to suture his wound or the 10 || delay in being treated at the outside hospital rather than at the prison. 11 The SAC is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure 12 ||to state a claim. Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. Because it is now 13 |/clear Plaintiff is unable to state a 42 U.S.C. § 1983 claim upon which relief may be granted, 14 || the dismissal is without further leave to amend. See Schmier v. U.S. Court of Appeals for 15 || the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing futility of amendment as 16 |/a proper basis for dismissal without leave to amend). 17 Conclusion and Order 18 The Court DISMISSES with prejudice Plaintiff's Second Amended Complaint for 19 || failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 20 || 1915(e)(2)(B)(G1) & 1915A(b)(1). The Clerk of Court shall close the case. 21 IT IS SO ORDERED. 22 23 || DATED: May 6, 2026 Cyatlua Bahar □□ H n. Cynthia Bashant, Chief Judge United States District Court 25 26 27 28 6 □