Polayo

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5 UNITED STATES DISTRICT COURT

6 FOR THE EASTERN DISTRICT OF CALIFORNIA

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8 EDWARD ANDROSHCHUK, No. 2:24-cv-01914-EFB (PC)

9 Plaintiff,

10 v. ORDER

11 POLAYO, et al.,

12 Defendants.

13

14 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

15 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28

16 U.S.C. § 636(b)(1). The court screens plaintiff’s complaint.1 ECF No. 1.

17 Screening Standards

18 Federal courts must engage in a preliminary screening of cases in which prisoners seek

19 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §

20 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of

21 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief

22 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.”

23 Id. § 1915A(b).

24 This standard is echoed in 28 U.S.C. § 1915(e)(2), which requires that courts dismiss a

25 case in which a plaintiff proceeds in forma pauperis at any time if it determines, among other

26 things, that the action “is frivolous or malicious,” “fails to state a claim on which relief may be

27 granted,” or “seeks monetary relief against a defendant who is immune from such relief.” “[The]

28 1 Plaintiff has paid the statutory filing fee. ECF Nos. 12, 13.

1 term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal conclusion,

2 but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989) (discussing

3 the predecessor to modern § 1915(e)(2), former § 1915(d)). Thus, § 1915(e)(2) allows judges to

4 dismiss a claim based on factual allegations that are clearly baseless, such as facts describing

5 “fantastic or delusional scenarios.” Id. at 327-38.

6 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)

7 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

8 plain statement of the claim showing that the pleader is entitled to relief, in order to give the

9 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

10 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99,

11 2 L.Ed.2d 80 (1957)). While the complaint must comply with the “short and plaint statement”

12 requirements of Rule 8, its allegations must also include the specificity required by Twombly and

13 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

14 To avoid dismissal for failure to state a claim a complaint must contain more than “naked

15 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

16 action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of a

17 cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678.

18 Furthermore, a claim upon which the court can grant relief must have facial plausibility.

19 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

20 content that allows the court to draw the reasonable inference that the defendant is liable for the

21 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a

22 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

23 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

24 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

25 Screening Order

26 Plaintiff sues 1) correctional officers Polayo, Ortiz, and Merced, and 2) correctional

27 sergeants Mendoza and John Doe 1. All defendants are employed at Kern Valley State Prison

28 (KVSP). Plaintiff alleges that he arrived at KVSP on April 19, 2023. He was placed in an intake

1 holding cell at KVSP’s receiving and release (R/R) entry point. He immediately informed nearby

2 officers (Polayo and Ortiz) of his concern for his safety at KVSP, based on experiences during a

3 previous incarceration at KVSP, “years ago.” ECF No. 1 at 7. He alleges that during his

4 previous stay at KVSP he was an “STG2 target” at risk from other prisoners because of his

5 crimes, and that this was documented in his file.

6 Polayo and Ortiz told plaintiff that his safety concerns were not yet proven or “endorsed,”

7 “because plaintiff had not experienced any new threats or physical attacks.” Id. at 7 ¶ 17.

8 Plaintiff asked to speak with the shift sergeant (Mendoza). While they waited for Mendoza,

9 Polayo advised plaintiff he “needed to man up, and stop acting like my life is so in danger,” while

10 Ortiz “chimed in” that plaintiff “didn’t give my victim a chance so I needed to man up as

11 suggested.” Id. at 7 ¶ 18. Both Polayo and Ortiz told plaintiff to “cuff up and go to my endorsed

12 facility, and stop crying like a snitch.” Id. at 7-8 ¶ 18.

13 Mendoza arrived and plaintiff reiterated that he could not go to the “D facility”3 because

14 of the nature of his crime, that he has an “R-suffix”4 and is a vulnerable victim who needs

15 protection, and that sending plaintiff to D facility was a callous response deliberately indifferent

16 to plaintiff’s safety. Id. at 8 ¶ 19. Mendoza told plaintiff he needed to “be a man” and allow staff

17 to escort him to D facility, and also “‘[y]ou file grievances and complaints against staff, and now

18 you want our f***king assistance it doesn’t work like that. We’re all together you should know

19 that Androshchuk, you were here before.’” Id. at ¶¶ 19-21.

20 Polayo and Ortiz escorted plaintiff to the D facility and to the custody of Merced, who

21 was the D facility’s “S.N.E.”5 Id. at 9 ¶ 25. Plaintiff began to cry and his “mental health

22 conditions beg[a]n to exacerbate from mental distress.” Id. at ¶ 24. Plaintiff relayed his safety

23 2 “STG” is understood to be an abbreviation for the term “security threat group.” See

Johnson v. Ryan, 55 F.4th 1167, 1172 (9th Cir. 2022).

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3 This is apparently a housing unit within KVSP.

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4 The complaint does not explain the “R-suffix” designation. See Williams v. Paramo,

26 775 F.3d 1182, 1190 (9th Cir. 2015) (an R-suffix may indicate a sex offense).

27 5 The complaint does not explain the “S.N.E.” designation, but it appears to be irrelevant

to plaintiff’s claims against Merced.

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1 concerns to Merced, including his history of being attacked during his previous stay in the D

2 facility. Merced stated “‘Look how it works here is when something happens in respect[] to your

3 safety concerns at that time you’ll be given an option [whether] you want to stay on the yard or

4 leave by either signing off or not. That is the only way I can help you.’” Id. at ¶ 26. At

5 plaintiff’s request, Merced called the staff sergeant (John Doe 1). The Doe sergeant told plaintiff

6 “Now you[’re] going to D4 whatever happened was in the past don’t worry.” Id. at 10 ¶ 27.

7 The complaint alleges plaintiff was “brutally attacked” by “several inmates” on May 24,

8 2023 while he walked to receive his morning medications. Id. at ¶¶ 28, 29. The inmates used

9 “unlawful force accompanied by the apparent ability to injure plaintiff.” Id. at ¶ 29. One of the

10 inmates is alleged to have stated “you think we forgot about you.” Id. at ¶ 31. The complaint

11 does not provide any further information about the attack. The complaint alleges the inmates

12 “inflict[ed] bodily injury” and that plaintiff “sustain[ed] physical injuries,” but there is no

13 description of any physical injury from the attack. Id. at ¶¶ 28, 29.

14 The complaint alleges plaintiff was placed in a holding cage where medical personnel

15 documented his unspecified injuries. Id. at ¶ 28. Plaintiff was kept in the holding cage for five

16 hours while he alleges he “went into shock” and was “light headed, faint, vomiting” and “left in

17 the heat … [r]esultin[g] in my symptoms exacerbating such as nausea, headaches, blurred vision,

18 dehydrat[ion], [and] overheat[ing].” Id. The complaint alleges plaintiff’s lengthy stay in the

19 holding cage was retaliation for his having told unidentified custody staff about the attacker’s

20 alleged comment. Id. at ¶¶ 28, 31.

21 Plaintiff was removed from the holding cage and taken to “C facility” and thereafter he

22 was transported to an outside hospital emergency room. Id. at 11 ¶ 31. The complaint does not

23 allege the reason for the off-site transport or the treatment plaintiff received at the hospital.

24 Plaintiff claims defendants failed to protect him from serious harm, and that he thereby suffered

25 unspecified injuries from the attack. Id. at 12 ¶ 36.

26 Deliberate Indifference – Failure to Protect

27 “[T]he treatment a prisoner receives in prison and the conditions under which he is

28 confined are subject to scrutiny under the Eighth Amendment,” which prohibits “cruel and

1 unusual punishment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). A violation of the Eighth

2 Amendment requires a showing of both an “objective component” – the objective seriousness of

3 the challenged condition, and a “subjective component” – the responsible official's subjective

4 state of mind. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson v. Seiter, 501 U.S. 294, 298

5 (1991). The Eighth Amendment imposes a duty on prison officials to “provide humane

6 conditions of confinement; prison officials must ensure that inmates receive adequate food,

7 clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of

8 the inmates.’” Farmer, 511 U.S. at 832. Where a prisoner alleges injuries stemming from an

9 objectively unsafe condition of confinement, prison officials may be held liable only if they acted

10 with “deliberate indifference to a substantial risk of serious harm.” Frost v. Agnos, 152 F.3d

11 1124 (9th Cir. 1998) (citing Farmer, 511 U.S. at 835). A condition is sufficiently serious if it

12 poses “a substantial risk of serious harm” to the inmate. Farmer, 511 U.S. at 832. Because the

13 sufficiency of a conditions-of-confinement claim depends upon the particular facts of each

14 situation, the “circumstances, nature, and duration” of the challenged conditions must be carefully

15 considered. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). “Whether a prison official had

16 the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the

17 usual ways, including inference from circumstantial evidence, ... and a factfinder may conclude

18 that a prison official knew of a substantial risk from the very fact that the risk was obvious.”

19 Farmer, 511 U.S. at 842. Thus, a showing of deliberate indifference rests on facts clearly

20 evincing “obduracy and wantonness, not inadvertence or error in good faith.” Whitley v. Albers,

21 475 U.S. 312, 319 (1986). “Liability may follow only if a prison official ‘knows that inmates

22 face a substantial risk of serious harm and disregards that risk by failing to take reasonable

23 measures to abate it.’” Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013)

24 (quoting Farmer, 511 U.S. at 847). The Eighth Amendment does not give rise to a federal cause

25 of action whenever prisoners are inconvenienced or suffer de minimis injuries. Hernandez v.

26 Denton, 861 F.2d 1421, 1424 (9th Cir. 1988), vacated on other grounds sub nom. Denton v.

27 Hernandez, 112 S. Ct. 1728 (1992).

28 /////

1 Analysis of Deliberate Indifference Claims

2 The complaint fails to allege any failure to protect claim against correctional officers

3 Polayo, Ortiz, or Merced because each of them is alleged to have summoned their respective

4 sergeants (Mendoza and Doe) to address plaintiff’s safety concerns. Any statements they may

5 have made to plaintiff are irrelevant to show deliberate indifference because the complaint does

6 not allege any of these officers had authority to make or to change plaintiff’s housing assignment.

7 The complaint instead alleges that Polayo, Ortiz, and Merced referred plaintiff’s safety concerns

8 to their sergeants which indicates they took the measures reasonably available to them regarding

9 those concerns.

10 According to plaintiff’s allegations, the sergeants (Mendoza and/or Doe) may have had

11 authority to reassign plaintiff away from the D facility, but they each independently declined to

12 do so on the grounds that plaintiff had not shown a present threat to his safety based on events

13 that occurred “years ago.” However, the complaint fails to show that sergeants Mendoza and/or

14 Doe exposed plaintiff to a specific and substantial risk of serious harm by assigning plaintiff to

15 the D facility, or that they were deliberately indifferent to that risk, or that plaintiff suffered any

16 specific injury – anything more than de minimis harm or pain – as a result of the housing

17 assignment, for the following reasons.

18 Regarding the attack of May 24, 2023, the complaint fails to allege the circumstances of

19 the event that would show a serious and substantial risk of serious harm that should have been

20 apparent to Mendoza and/or Doe as of plaintiff’s arrival on April 19. The complaint alleges an

21 attack by other inmates that was “brutal” and demonstrated an “apparent ability to injure

22 plaintiff” and caused unspecified physical injury, but it does not describe the attack, the physical

23 injury, or the severity of physical injury. See ECF No. 1 at 10 ¶ 29 (emphasis added). A medical

24 evaluation was conducted while plaintiff was in the holding cage after the attack, but the

25 complaint does not describe the results of the evaluation. Plaintiff was transported to the hospital

26 at some point after he was transferred from the D facility to the C facility, but the complaint does

27 not allege the reason for the transport, nor does it describe what care plaintiff received at the

28 hospital. In summary, the complaint does not allege any specific physical injury from the attack

1 that was more than de minimis.

2 The complaint instead alleges specific conditions apparently related to the extended time

3 that plaintiff spent in the holding cage after the attack and before being transferred to C facility,

4 such as over-heating, dehydration, nausea, headaches, blurred vision, vomiting, and

5 lightheadedness. Because these are the only specific conditions alleged in the complaint, it

6 therefore appears that the off-site transport may have been to address these issues. The complaint

7 thus fails to plausibly allege a greater-than-de minimis injury as a result of the attack itself. For

8 these reasons the complaint fails to state an Eighth Amendment failure to protect claim based on

9 the attack.

10 Regarding the five-hour stay in the holding cage, which appears to have led to the

11 overheating and other conditions described in the complaint, there is no allegation that any of the

12 defendants had any role in placing or keeping plaintiff in the holding cage.6 Decisions that may

13 have been made by the sergeant defendants (Mendoza and/or Doe) to house plaintiff in the D

14 facility upon his arrival at KVSP on April 19 are too far removed from plaintiff’s time in the

15 holding cage on May 24 to state a claim of deliberate indifference.

16 Retaliation

17 To state a claim for retaliation in violation of the First Amendment, a prisoner must allege

18 facts showing five elements: (1) that a state actor took some adverse action against him (2)

19 because of (3) his protected conduct, (4) that such action chilled his exercise of his First

20 Amendment rights, and (5) the action did not advance a legitimate correctional goal. Rhodes v.

21 Robinson, 408 F.3d 559, 567-568 (9th Cir. 2005). The plaintiff need not allege that his speech

22 was actually inhibited or suppressed, but merely that the defendant’s conduct was such as would

23 chill or silence a person of ordinary firmness from future First Amendment activities. Id. at 568-

24 569. Conduct protected by the First Amendment includes communications that are “part of the

25 grievance process.” Brodheim v. Cry, 584 F.3d 1262, 1271 n.4 (9th Cir. 2009).

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6 In particular, the complaint does not allege that the defendants who worked in the R/R

27 entry point (Polayo, Ortiz, and Mendoza) were responsible for the confinement in the holding

cage in the D facility.

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1 Analysis of Retaliation Claims

2 The complaint alleges two separate instances of potential retaliation. The first adequately

3 states a claim, the second does not. The first retaliation claim in the complaint is based on

4 Mendoza’s comment to plaintiff that “filing grievances and complaints against staff” would

5 impede his receiving assistance. ECF No. 1 at 8 ¶¶ 19-21. Plaintiff had objected to his placement

6 in D facility as being “deliberately indifferent” and Mendoza’s comment apparently also

7 referenced grievances and/or complaints plaintiff had made “before” – i.e., during plaintiff’s

8 previous stay at KVSP. This sufficiently alleges protected conduct. The threat to withhold

9 assistance in changing plaintiff’s housing assignment away from the D facility is sufficient under

10 these allegations to constitute an adverse action.7 The complaint thus plausibly states a claim

11 against Mendoza for retaliation.

12 The second potential retaliation claim relates to the allegation that plaintiff’s five-hour

13 stay in the holding cage was retaliation for telling unidentified custody staff that an inmate who

14 attacked plaintiff had commented “you think we forgot about you.” ECF No. 1 at 10 ¶¶ 28, 31.

15 The inference is that plaintiff’s reporting of this comment was somehow an implicit criticism of

16 prison officials for assessing that plaintiff would not face an undue threat in D facility because of

17 events during his previous incarceration there. See id. at 10 ¶ 27 (the Doe sergeant had assured

18 plaintiff that “whatever happened was in the past don’t worry”). However, “an inmate’s mere

19 verbal criticism of a government official, without indicating an intent to sue or pursue an

20 administrative grievance, is not protected conduct.” West v. Livesay, 2:19-cv-7190-VBF-KES,

21 2022 WL 17185985, at *4 (C.D. Cal. Aug. 10, 2022); see also Bobadilla v. Knight, 2:18-cv-1778-

22 JAM-KJN, 2020 WL 4059183, at *7 (E.D. Cal. July 20, 2020) (“there is no clearly established

23 7 A prisoner has no constitutional right to have the housing assignment of his choice. See

Olin v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 225-27 (1976).

24 However, an adverse action “need not independently deprive the plaintiff (prisoner or not) of a

constitutional right.” Oliver v. Perez-Pantoja, No. 5:19-cv-7957 EJD, 2023 WL 12033407, at *5

25 (N.D. Cal. March 24, 2023) (citing inter alia Vignolo v. Miller, 120 F.3d 1075, 1078 (9th Cir.

1997)). Adverse actions may include a harm or a threat of harm that would chill a person of

26 ordinary firmness from complaining. Shepard v. Quillen, 840 F.3d 686, 691 (9th Cir. 2016)

(placement in administrative segregation or threat to do so); Vignolo, 120 F.3d at 1078 (discharge

27 from prison job); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985) (transfer to a different

prison).

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1 Supreme Court or Ninth Circuit authority finding that a prisoner’s verbal complaints concerning

2 matters not related to inmate grievances or litigation constitute protected conduct”). The

3 complaint also fails to allege that plaintiff reported his attacker’s comment to any of the

4 defendants, or that any of the defendants was responsible for the time plaintiff spent in the

5 holding cage. The holding cage allegations therefore fail to state the first three elements of a

6 retaliation claim – i.e., that any of the defendants kept plaintiff in the holding cage for an

7 excessive time because of plaintiff’s protected speech.

8 Summary

9 The complaint does not state any cognizable claim against Polayo, Ortiz, Merced, or the

10 Doe sergeant. It does state a cognizable First Amendment retaliation claim against Mendoza, but

11 does not state an Eighth Amendment failure to protect claim against Mendoza.

12 Doe Defendant

13 Should plaintiff choose to file an amended complaint, then regarding any claim against the

14 Doe sergeant in an amended complaint, the court notes that the use of Doe defendants in federal

15 court is problematic, see Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), and ultimately

16 unnecessary. Should plaintiff learn the identity of the “Doe,” he may move pursuant to Rule 15

17 of the Federal Rules of Civil Procedure to file an amended complaint to add him as a defendant.

18 See Brass v. County of Los Angeles, 328 F.3d 1192, 1197-98 (9th Cir. 2003). Unknown persons

19 cannot be served with process until they are identified by their real names and the court will not

20 investigate the names and identities of unknown defendants.

21 Amended Complaint

22 Plaintiff will be provided an opportunity to file an amended complaint to attempt to

23 correct the deficiencies identified in this screening order. Plaintiff is not obligated to amend the

24 complaint; he may instead choose to proceed only on his First Amendment retaliation claim

25 against Mendoza.

26 If plaintiff chooses to file an amended complaint, he should note that any amended

27 complaint must identify as a defendant only persons who personally participated in a substantial

28 way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th

1 || Cir. 1978) (a person subjects another to the deprivation of a constitutional right if he does an act,

2 || participates in another's act or omits to perform an act he is legally required to do that causes the

3 || alleged deprivation).

4 Further, any amended complaint must be written or typed so that it so that it is complete in

5 || itself without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an

6 || amended complaint supersedes any earlier filed complaint, and once an amended complaint is

7 || filed, the earlier filed complaint no longer serves any function in the case. See Forsyth v.

8 | Humana, 114 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original,

9 || the latter being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th

10 | Cir. 1967)).

11 The court cautions plaintiff that failure to comply with the Federal Rules of Civil

12 || Procedure, this court's Local Rules, or any court order may result in this action being

13 || dismissed. See Local Rule 110.

14 Order

15 Accordingly, it is hereby ORDERED that:

16 1. Plaintiff's complaint (ECF No. 1) alleges, for screening purposes, a potentially

17 || cognizable claim for violation of the First Amendment against defendant Mendoza.

18 2. All other claims are dismissed with leave to amend within 30 days of service of this

19 | order. Plaintiff □□ not obligated to amend his complaint.

20 3. Within thirty days plaintiff shall return the notice below advising the court whether he

21 || elects to proceed with the cognizable claims or file an amended complaint. If the former option is

22 || selected and returned, the court will enter an order directing service at that time.

23 4. Failure to comply with any part of this this order may result in dismissal of this action.

24 | Dated: October 28, 2025

26 EDMUND F. BRENNAN

UNITED STATES MAGISTRATE JUDGE

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1 Attachment

2 UNITED STATES DISTRICT COURT

3 FOR THE EASTERN DISTRICT OF CALIFORNIA

4 EDWARD ANDROSHCHUK, Plaintiff,

5 v.

6 POLAYO, et al., Defendants.

7 No. 2:24-cv-1914-EFB (P)

8 NOTICE OF ELECTION

9 In accordance with the court's Screening Order, plaintiff hereby elects to:

10 (1) _____ proceed only with the First Amendment claims against Mendoza.

11 OR

12 (2) _____ delay serving any defendant and file an amended complaint.

13

14 ______________________________

15 Plaintiff

16 Dated:

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