The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 EDGAR PLASCENCIA, Case No.: 26-CV-1435 JLS (MSB)
CDCR #BG-9161,
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ORDER:
Plaintiff,
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vs. (1) GRANTING MOTION TO
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PROCEED IN FORMA PAUPERIS,
CHIRAG BHAVSAR, Doctor; SAMUEL
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KO, Doctor; MICHAEL DIZON, RN;
(2) SCREENING COMPLAINT
16 CHRISTANA BETACOURT; LVN;
PURSUANT TO 28 U.S.C. § 1915(e)(2)
CALIFORNIA CORRECTIONAL
17 AND 28 U.S.C. § 1915A(b), AND
HEALTH CARE SERVICES;
18 CALIFORNIA DEPARTMENT OF
(3) SETTING DEADLINE TO
CORRECTIONS AND
19 CHOOSE OPTION
REHABILITATION,
20 Defendants. (ECF No. 2)
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22 Presently before the Court is pro se Plaintiff Edgar Plascencia’s Motion to Proceed
23 in Forma Pauperis (“IFP”) (“IFP Mot.,” ECF No. 2). Plaintiff has filed a civil rights
24 complaint pursuant to 42 U.S.C. § 1983. See ECF No. 1 (“Compl.”). Plaintiff contends
25 that medical officials at Centinela State Prison violated his Eighth Amendment rights by
26 failing to provide proper care and assign him to a lower bunk on the lower tier after his
27 knee surgery at an outside facility on May 23, 2022, and further claims that Defendants
28 failed to provide proper care after he subsequently fell from his lower tier top bunk. See
1 generally ECF No. 1-2 at 1–4. For the reasons discussed below, the Court GRANTS
2 Plaintiff’s IFP Motion, screens and dismisses most of his claims pursuant to 28 U.S.C. §§
3 1915(e)(2) & 1915A; however, some of the allegations against Dr. Ko are sufficient to state
4 a plausible claim for relief under the Eighth Amendment. The Court therefore provides
5 Plaintiff the option to either amend his pleading in full or to proceed with only his
6 sufficiently pleaded claim against Defendant Ko.
7 I. Motion to Proceed IFP
8 All parties instituting any civil action, suit or proceeding in a district court of the
9 United States, except an application for writ of habeas corpus, must pay a filing fee of
10 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55,
11 although the administrative fee does not apply to persons granted leave to proceed IFP.
12 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee
13 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to
14 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
15 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A prisoner
16 seeking leave to proceed IFP must submit a “certified copy of the trust fund account
17 statement (or institutional equivalent) for . . . the 6-month period immediately preceding
18 the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113,
19 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an
20 initial payment of 20% of (a) the average monthly deposits in the account for the past six
21 months, or (b) the average monthly balance in the account for the past six months,
22 whichever is greater, unless the prisoner has insufficient assets. See 28 U.S.C.
23 § 1915(b)(1)&(4); Bruce v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP
24 must pay any remaining balance in “increments” or “installments,” regardless of whether
25 their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1)&(2); Bruce, 577 U.S. at 84.
26 In support of his IFP Motion, Plaintiff has submitted a copy of his California
27 Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report and
28 Prison Certificate attested to by a CDCR trust account official. IFP Mot. at 8. The
1 document shows he had an average monthly balance of $368.09 and average monthly
2 deposits of $297.50, with an available balance of $131.98. Id. Therefore, the Court
3 GRANTS Plaintiff’s IFP Motion and assesses an initial partial filing fee of $73.62, but the
4 initial fee need be collected only if sufficient funds are available in Plaintiff’s account at
5 the time this Order is executed. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event
6 shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal
7 judgment for the reason that the prisoner has no assets and no means by which to pay the
8 initial partial filing fee”); Taylor, 281 F.3d at 850 (finding that 28 U.S.C. § 1915(b)(4) acts
9 as a “safety-valve” preventing dismissal of a prisoner’s IFP case based solely on a “failure
10 to pay . . . due to the lack of funds available to him when payment is ordered”). Plaintiff
11 is required to pay the remainder of the $350 filing fee in full pursuant to the installment
12 provisions of 28 U.S.C. § 1915(b)(1).
13 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
14 A. Legal Standard
15 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a pre-
16 Answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). The Court must sua
17 sponte dismiss a prisoner’s IFP complaint, or any portion of it, which is frivolous,
18 malicious, fails to state a claim, or seeks damages from defendants who are immune. Lopez
19 v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (28 U.S.C. § 1915(e)(2));
20 Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (28 U.S.C. § 1915A(b)).
21 “The standard for determining whether a plaintiff has failed to state a claim upon
22 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
23 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
24 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.
25 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the
26 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule
27 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state
28 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
1 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining
2 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that
3 requires the reviewing court to draw on its judicial experience and common sense.” Id.
4 Title 42 U.S.C. § 1983 “creates a private right of action against individuals who,
5 acting under color of state law, violate federal constitutional or statutory rights.”
6 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). Section 1983 “is not itself a
7 source of substantive rights, but merely provides a method for vindicating federal rights
8 elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation
9 marks omitted). “To establish § 1983 liability, a plaintiff must show both (1) deprivation
10 of a right secured by the Constitution and laws of the United States, and (2) that the
11 deprivation was committed by a person acting under color of state law.” Tsao v. Desert
12 Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
13 B. Factual Allegations in the Complaint1
14 Plaintiff alleges he underwent an orthopedic surgical procedure to repair his left knee
15 on May 23, 2022, and returned that same day to Centinela State Prison under the medical
16 care of Defendants Registered Nurse (“RN”) Michael Dizon, Dr. Chirag Bhavsar, Dr.
17 Samuel Ko and Licensed Vocational Nurse (“LVN”) Christana Betacourt. ECF No. 1-2
18 at 1. Plaintiff further claims the California Department of Corrections and Rehabilitation
19 (“CDCR”) health care operations manual’s policies and procedures for this type of surgery
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1 Plaintiff acknowledges he previously filed a complaint in S.D. Cal. Case No. 23-CV-895 RSH (SBC),
22 which involved the same or similar facts (and several of the same defendants) as in this case. See Compl.
at 6. In that case, Judge Huie initially granted Plaintiff’s IFP motion and dismissed the complaint for
23 failure to state a claim with leave to amend. See Plascencia v. Ko, et al., No. 23-CV-895 RSH (SBC),
ECF No. 5 (S.D. Cal. Aug. 7, 2023) (“Plascencia I”). Instead of filing an amended complaint, Plaintiff
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subsequently filed a notice of voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), see
25 Plascencia I, ECF No. 8, and on October 26, 2023, Judge Huie dismissed the case without prejudice
pursuant to Plaintiff’s notice, id., ECF No. 9. Because the prior case was dismissed voluntarily pursuant
26 to Fed. R. Civ. P. 41(a), this civil action is “an entirely new lawsuit unrelated” to that prior action. See
City of South Pasadena v. Mineta, 284 F.3d 1154, 1157–58 (9th Cir. 2002) (noting a voluntary dismissal
27 without prejudice pursuant to Fed. R. Civ. P. 41(a) “leaves the situation as if the action never had been
filed,” and as a result, “any future lawsuit based on the same claim [is] an entirely new lawsuit unrelated
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1 indicate a patient should be taken to the Correctional Treatment Center (“CTC”) for 72
2 hours “to make sure there are no complications” and that during this time, “the patient’s
3 meal[]s and med[]s are to be brought to the patient’s room.” Id. Plaintiff claims the policy
4 further provides that once the 72 hours has passed without complications, “the patient is to
5 be discharged” and “returned to his housing in a wheelchair,” which is “pushed by a[n]
6 (ADA) worker,” who will also push the patient to appointments and retrieve his
7 medications for 14 days; meals are to be brought to the patient’s housing for 30 days. Id.
8 at 1–2. Plaintiff also claims the policy requires review of the patient’s housing
9 accommodation prior to leaving CTC and a patient assigned to a top tier and/or bunk “is to
10 be moved to the bottom tier in a lower[]bunk/lower tier.” Id. at 2.
11 Plaintiff contends Defendant RN Dizon failed to follow “ANY” of the claimed
12 policies and procedures and instead “immediately” cleared Plaintiff to return to his housing
13 unit. Id. When Plaintiff objected that he was on a top bunk in the lower tier, Dizon stated:
14 “I don’t care about polic[i]e[s] [and] [p]rocedures, you can deal with your floor staff about
15 your top bunk.” Id. Plaintiff claims Dizon also refused to provide him with a wheelchair
16 and instead “gave [him] a pair of crutches” and ordered him to return to his assigned yard
17 and unit by “walk[ing] the three hundred yards on crutches just two hour[]s after his
18 [o]rthopedic [s]urgery.” Id. After returning, Plaintiff claims he asked unidentified staff to
19 move him to a lower bunk, but they told him that was “medical[s] job.” Id. Plaintiff alleges
20 he fell mere “hour[s]” after his surgery when he “tr[ied] to get down to use the bathroom.”
21 Id.
22 Plaintiff relatedly alleges Defendant Dr. Bhavsar, who was the yard doctor at
23 Centinela, knew Plaintiff was going out for and returning from surgery and knew the
24 relevant policies and procedures for that surgery. Id. at 3. Plaintiff claims Dr. Bhavsar
25 knew he was assigned to a top bunk but failed to update his housing chrono. Id. Plaintiff
26 alleges Dr. Bhavsar’s failure “[t]hus caus[ed] the injury that the Plaintiff [s]uffered from
27 the fall off his top bunk.” Id.
28 / / /
1 Separately, Plaintiff alleges that after his fall, Defendant LVN Betacourt “would not
2 dress his wound” which was bleeding from the fall. Id. Instead, Betacourt “un[w]rapped
3 Plaintiff’s wound and the [w]rapped Plaintiff’s wound back up with the same [w]rap that
4 was bloody and dirty.” Id. Plaintiff claims Betacourt also took his wheelchair after the fall
5 “and would not allow the ADA worker to help” him. Id.
6 Finally, Plaintiff asserts Defendant Dr. Ko, who he saw after the fall, took “x[-]rays
7 and a MRI” and then “told Plaintiff there was nothing wrong with him and refused to send
8 [him] to a specialist” despite the physical therapist’s recommendation to do so. Id. Plaintiff
9 continued to see Dr. Ko for two years for “[s]evere [p]ain in his back due to the fall” and
10 claims that each time, Dr. Ko “[r]efused to treat [him].” Id. When Dr. Ko was later
11 replaced by Dr. Cane, Dr. Cane sent Plaintiff to a neurologist. Id. On April 23, 2025, at
12 Plaintiff’s eventual neurology consultation, he was informed that his fall from the top bunk
13 resulted in a “very serious back injury,” which included “[t]wo lower Thoracic
14 Compression Fractures demonstrating Chronic Features; Mild Thoracic Kyphosis;
15 Degenerative Change of the Thoracic Spine; Ne[u]roforaminal Stenosis of Cervical Spine;
16 and Degenerative Disc Disease,” and that he would need treatment for the rest of his life.
17 Id. at 1. The neurologist who examined him, along with reviewing the x-rays and the MRI,
18 “told the Plaintiff due to the lapse of time from . . . the fall from the top bunk . . . now you
19 have nerve damage.” Id. at 3. Plaintiff asserts the neurologist stated that had Plaintiff been
20 seen right after the fall, the nerve damage could have been “[s]topped.” Id. Plaintiff
21 contends Dr. Ko had the “same” x-rays and MRI both Dr. Cane and the neurologist also
22 had, yet “[f]ailed to [p]revent [h]arm” by refusing to help. Id. at 4.
23 In sum, Plaintiff asserts an Eighth Amendment claim against Defendants RN Dizon
24 and Dr. Bhavsar for deliberate indifference to his safety and failure to protect him from
25 harm arising from the top bunk assignment and his subsequent fall. He further asserts an
26 Eighth Amendment claim against Defendants LVN Betacourt and Dr. Ko for deliberate
27 indifference to his medical needs and failure to protect him from harm arising from
28 treatment rendered after his fall. Finally, Plaintiff also names as Defendants California
1 Correctional Health Care Services (“CCHCS”) and CDCR but includes no factual
2 allegations against either of these Defendants. See generally Compl.
3 Plaintiff seeks compensatory and punitive monetary damages against each
4 Defendant, as well as a jury trial, costs, and any additional relief the Court finds
5 appropriate. ECF No. 1-2 at 5.
6 C. Discussion
7 Plaintiff seeks to proceed against Defendants Dizon, Dr. Bhavsar, Betacourt, and Dr.
8 Ko in their individual and official capacities and against Defendants CCHCS and CDCR
9 “for the p[u]r[]pose of Discovery issues.” See Compl. at 2; ECF No. 1-2 at 1, 4.
10 As an initial matter, Plaintiff may not proceed against Defendants CDCR or CCHCS
11 on the claims in the instant civil action because neither CDCR nor CCHCS are a “person”
12 subject to suit under § 1983, but rather are agencies of the State of California. See
13 Devereaux, 263 F.3d at 1074 (Title 42 U.S.C. § 1983 “creates a private right of action
14 against individuals who, acting under color of state law, violate federal constitutional or
15 statutory rights”); see Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989)
16 (“[N]either a State nor its officials acting in their official capacities are ‘persons’ under
17 § 1983.”); see also Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir. 2004) (“State
18 agencies . . . are not ‘persons’ within the meaning of § 1983, and are therefore not amenable
19 to suit under that statute.” (citing Will, 491 U.S. at 70)).
20 Nor may Plaintiff proceed with a claim for damages against any of the Defendants
21 in their “official capacity” because such claims are barred under the Eleventh Amendment.
22 Absent “a waiver by the state or a valid congressional override,” Dittman v. California,
23 191 F.3d 1020, 1025 (9th Cir. 1999), “[t]he Eleventh Amendment bars suits for money
24 damages in federal court against a state, its agencies, and state officials acting in their
25 official capacities,” Aholelei v. Department of Public Safety, 488 F.3d 1144, 1147 (9th Cir.
26 2007). “The State of California has not waived its Eleventh Amendment immunity with
27 respect to claims brought under § 1983 in federal court.” Dittman, 191 F.3d at 1025–26;
28 see Alabama v. Pugh, 438 U.S. 781, 782 (1978) (“There can be no doubt, however, that
1 suit against the State and its Board of Corrections is barred by the Eleventh Amendment,
2 unless [the State] has consented to the filing of such a suit.”)
3 Accordingly, the Court DISMISSES CDCR and CCHCS as Defendants with respect
4 to Plaintiff’s Eighth Amendment claims for damages and DISMISSES all Defendants to
5 the extent he seeks damages against them in their official capacities.2 The Court will
6 proceed to consider Plaintiff’s individual capacity claims against the remaining named
7 Defendants.
8 1. Eight Amendment, Failure to Protect
9 Plaintiff alleges Defendants Dizon and Dr. Bhavsar were deliberately indifferent to
10 his safety and failed to protect him from harm by requiring him to return to his lower
11 tier/top bunk housing accommodations shortly after surgery and by failing to provide him
12 a wheelchair immediately after he was released from the CTC.
13 “[A] prison official violates the Eighth Amendment only when two requirements are
14 met. First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Farmer v.
15 Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
16 Second, “a prison official must have a ‘sufficiently culpable state of mind,’” that is, “one
17 of ‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson, 501 U.S. at
18 302–03). “[A] prison official cannot be found liable under the Eighth Amendment for
19 denying an inmate humane conditions of confinement unless the official knows of and
20 disregards an excessive risk to inmate health or safety; the official must both be aware of
21 facts from which the inference could be drawn that a substantial risk of serious harm exists,
22 and he must also draw the inference.” Id. at 837.
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25 2 Even if Defendants CDCR and CCHCS were not subject to dismissal for the reasons stated above, they
would still be dismissed because Plaintiff fails to make specific allegations as to any claimed action or
26 inaction by either the CDCR or CCHCS in his Complaint and fails to allege any constitutional violation
committed by either entity. See generally Compl.; see also Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.
27 1988) (“The inquiry into causation must be individualized and focus on the duties and responsibilities of
each individual defendant whose acts or omissions are alleged to have caused a constitutional
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1 Plaintiff alleges to have suffered a “very serious back injury” from his fall, including
2 but not limited to two lower thoracic compression fractures, which the Court assumes for
3 purposes of screening are objectively and serious medical conditions. See ECF No. 1-2 at
4 1; see also Glosson v. Morales, 469 F. Supp. 2d 827, 834 (S.D. Cal. 2007) (“‘A physical
5 injury is an observable or diagnosable medical condition requiring treatment by a medical
6 care professional. It is not a sore muscle, an aching back, a scratch, an abrasion, a bruise,
7 etc., which lasts even up to two or three weeks.’” (quoting Luong v. Hatt, 979 F. Supp. 481,
8 486 (N.D. Tex. 1997))); Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002) (holding that
9 the PLRA “requires a prior showing of physical injury that need not be significant but must
10 be more than de minimis”).
11 However, Plaintiff fails to plausibly allege Dizon and Bhavsar acted with deliberate
12 indifference to a substantial or excessive risk of serious harm. Farmer, 511 U.S. at 837.
13 Rather, Plaintiff merely alleges that RN Dizon and Dr. Bhavsar disregarded or failed to
14 properly follow CDCR post-surgical policy by prematurely clearing him to return to his
15 housing unit with the use of crutches rather than a wheelchair and failing to change his
16 lower tier bunk assignment from a top bunk to a lower bunk. To the extent Plaintiff
17 attempts to premise his claim on these Defendants’ asserted failure to follow CDCR’s
18 health care policies and procedures, any such failures to follow policy, on their own, do
19 not state a federal constitutional violation. See, e.g., James v. Emmens, No. 16CV2823-
20 WQH (NLS), 2018 WL 4002644, at *9 (S.D. Cal. Aug. 22, 2018), report and
21 recommendation adopted, No. 16CV2823-WQH-NLS, 2019 WL 366224 (S.D. Cal. Jan.
22 29, 2019) (“[V]iolations of policies do not rise to the level of a constitutional violation.”
23 (first citing Sherman v. Wagner, No. CV-10-6128-HU, 2011 WL 1337091, at *3 (D. Or.
24 Feb. 28, 2011), report and recommendation adopted, No. CV 10-6128-HU, 2011 WL
25 1322312 (D. Or. Apr. 6, 2011) (“[F]ailure to follow prison policy does not, by itself, state
26 a section 1983 claim.”); then citing Porro v. Barnes, 624 F.3d 1322, 1229 (10th Cir. 2010)
27 (“[V]iolation of a prison regulation does not give rise to an Eighth Amendment violation
28 absent evidence the prison official’s conduct failed to conform to the constitutional
1 standard.” (internal quotation omitted))).
2 Specifically, Plaintiff alleges RN Dizon failed to follow policy and “cleared”
3 Plaintiff to return to his housing unit immediately after his return to Centinela after surgery,
4 and when Plaintiff noted he had a lower tier/top bunk assignment, Dizon stated: “I don[’]t
5 care about polic[y] and [p]rocedures, you can deal with your floor staff about your top
6 bunk.” ECF No. 1-2 at 5. Plaintiff claims Dizon also refused to give him a wheelchair and
7 instead provided crutches for the three-hundred-yard walk to his assigned unit. Id. Plaintiff
8 plainly alleges that it was Dizon’s disregard of procedure that led to the risk of harm, see
9 ECF No. 1-2 at 2, but he fails to proffer sufficient facts which plausibly allege Dizon
10 actually knew either the use of crutches and/or his top bunk assignment created a
11 substantial risk of harm or that Dizon consciously disregarded that risk. See Farmer, 511
12 U.S. at 835 (“[D]eliberate indifference describes a state of mind more blameworthy than
13 negligence” and “‘more than ordinary lack of due care for the prisoner’s interests or
14 safety.’” (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)) (citing Estelle v. Gamble,
15 429 U.S. 97, 104, 106 (1976))). Plaintiff’s vague and conclusory allegation that Dizon
16 knew the risk of harm existed, see ECF No. 1-2 at 2, without more, is not sufficient to state
17 a claim, see Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of
18 action, supported by mere conclusory statements, do not suffice.”).
19 Plaintiff similarly alleges Dr. Bhavsar was aware generally of the policies and
20 procedures for both “this kind of [s]urgery” and his housing assignment, and “disregarded”
21 updating his chrono and “mov[ing] [him] to a lower bunk.” ECF No. 1-2 at 3. Again,
22 however, Plaintiff offers only conclusory allegations that Bhavsar knew both these things
23 and simply speculates that his risk of injury “could have been [e]liminated [t]hrough
24 [r]easonable and [a]vailable [m]easures.” Id. Crucially, Plaintiff fails to allege any facts
25 which plausibly support these conclusions. See Farmer, 511 U.S. at 835; Iqbal, 556 U.S.
26 at 678; Walter v. Lancaster State Prison Med. Dep’t, No. CV 09-3932-R (SH), 2010 WL
27 2680535, at *6 (C.D. Cal. May 27, 2010), report and recommendation adopted, No. CV
28 09-3932-R (SH), 2010 WL 2680537 (C.D. Cal. July 1, 2010) (“Defendant’s failure to
1 check Plaintiff’s medical file based on his statements about his medical condition and
2 assign him a lower bunk amounts, at most, to negligence. . . . An isolated incident of
3 arguable neglect such as this one, does not constitute deliberate indifference to serious
4 medical needs.” (citations omitted)).
5 If Plaintiff wishes to proceed with his Eighth Amendment claims against Dizon and
6 Bhavsar, he must set forth facts which plausibly how and why each of them was aware of
7 facts from which they could draw an inference that clearing him to return to his housing
8 unit with crutches right after his return from surgery and failing to assign him to a lower
9 bunk presented a substantial risk of serious harm and that each of them also drew that
10 inference. Id. at 837; see Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004)
11 (“Deliberate indifference is a high legal standard.”)
12 Accordingly, Plaintiff’s Eighth Amendment claims against Defendants Dizon and
13 Bhavsar are dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state
14 a claim. Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121; Iqbal, 556 U.S. at 678.
15 As set forth below, Plaintiff will be given the option to amend his Complaint to cure these
16 pleading deficiencies or proceed only with the claim which survives screening. See Rosati
17 v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro
18 se complaint without leave to amend unless ‘it is absolutely clear that the deficiencies of
19 the complaint could not be cured by amendment.’” (quoting Akhtar v. Mesa, 698 F.3d 1202,
20 1212 (9th Cir. 2012)).
21 2. Eighth Amendment, Denial of Medical Care
22 Plaintiff also alleges Defendants Betacourt and Dr. Ko were deliberately indifferent
23 to his medical needs and failed to protect him from further harm after his fall.
24 A denial or delay of medical care for a prisoner’s serious medical needs may
25 constitute a violation of the Eighth Amendment. Estelle, 429 U.S. at 104–05. “In order to
26 prevail on an Eighth Amendment claim for inadequate medical care, a plaintiff must show
27 ‘deliberate indifference’ to his ‘serious medical needs.’” Colwell v. Bannister, 763 F.3d
28 1060, 1066 (9th Cir. 2014) (quoting Estelle, 429 U.S. at 104). “[I]ndicia of a ‘serious’
1 medical need include (1) the existence of an injury that a reasonable doctor would find
2 important and worthy of comment or treatment, (2) the presence of a medical condition
3 that significantly affects an individual’s daily activities, and (3) the existence of chronic or
4 substantial pain.” Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994) (citation
5 omitted). “Deliberate indifference ‘may appear when prison officials deny, delay or
6 intentionally interfere with medical treatment, or it may be shown by the way in which
7 prison physicians provide medical care.’” Colwell, 763 F.3d at 1066 (quoting Hutchinson
8 v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). To show deliberate indifference, a
9 plaintiff must allege both “(a) a purposeful act or failure to respond to a prisoner’s pain or
10 possible medical need and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d
11 1091, 1096 (9th Cir. 2006) (citation omitted).
12 As an initial matter, the Court finds for the purposes of screening that Plaintiff has
13 plausibly alleged a serious medical need arising from the “very serious back injury” he
14 suffered from the fall which caused him “[s]evere [p]ain,” particularly when coupled with
15 the fact that Plaintiff also underwent knee surgery earlier that same day and had a separate
16 surgical bandage from that procedure. See ECF No. 1-2 at 1; see, e.g., Burnett v. Faecher,
17 No. CV 08-2745-PSG(MLG), 2009 WL 2007118, at *7 (C.D. Cal. July 6, 2009)
18 (“Plaintiff’s allegations of disabling back pain are sufficient to establish a serious medical
19 need.”). The Court will proceed to address, in turn, Plaintiff’s allegations against LVN
20 Betacourt and Dr. Ko.
21 First, Plaintiff alleges that after his fall, LVN Betacourt initially “would not dress
22 his wound,” and more specifically, change the orthopedic surgical bandage which he
23 claims was bleeding from the fall. ECF No. 1-2 at 3. Plaintiff claims Betacourt instead
24 “un[w]rapped Plaintiff’s wound,” and would wrap “Plaintiff’s wound back up with the
25 same [w]rap that was bloody and dirty.” Id. Plaintiff also faults Betacourt for taking his
26 wheelchair after the fall and refusing to allow an ADA worker to help him. See id.
27 Yet, as he acknowledges Betacourt ultimately unwrapped and re-wrapped his
28 surgical bandage when told to do so, see id., Plaintiff does not claim Betacourt failed or
1 refused to treat him. See, e.g., Alexander v. Salazar, No. 219CV04138MWFSK, 2020 WL
2 8125529, at *1 (C.D Cal. Mar. 24, 2020) (“[R]efusing to clean a wound or redress bandages
3 for no good reason, if true, can plausibly amount to deliberate medical indifference.”)
4 (collecting cases). Rather, Plaintiff alleges at most negligence or malpractice in
5 Betacourt’s actions in treating his surgical wound, which fails to state a claim under the
6 Eighth Amendment. See Estelle, 429 U.S. at 106 (“[A] complaint that a physician has been
7 negligent in diagnosing or treating a medical condition does not state a valid claim of
8 medical mistreatment under the Eighth Amendment. Medical malpractice does not become
9 a constitutional violation merely because the victim is a prisoner.”). Moreover, Plaintiff
10 fails to offer facts which plausibly allege Betacourt’s actions in treating his post-surgical
11 knee after the fall resulted in any physical harm to him, such as an infection or other further
12 injury to the treated knee. See Jett, 439 F.3d at 1096 (To show deliberate indifference, a
13 plaintiff must allege both “(a) a purposeful act or failure to respond to a prisoner’s pain or
14 possible medical need and (b) harm caused by the indifference.” (emphasis added)); see
15 Oliver, 289 F.3d at 627 (holding that the PLRA “requires a prior showing of physical injury
16 that need not be significant but must be more than de minimis”).
17 Next, the Court turns to Betacourt’s asserted refusal to allow Plaintiff the assistance
18 of an ADA worker and actions in taking his wheelchair after his fall. See ECF No. 1-2
19 at 3. Here, the allegations in the Complaint are vague, conclusory, and inconsistent with
20 Plaintiff’s prior claim to have been refused a wheelchair altogether by Dizon.3 For
21 example, Plaintiff fails to indicate what level of mobility assistance he required after the
22 fall, when he was provided a wheelchair, why he needed one, or how Betacourt’s failure
23 to “allow the ADA worker to help” him, id., demonstrates her deliberate indifference,
24 Burton v. McVay, No. 24-CV-1302-MMA (JLB), 2024 WL 3798404, at *4 (S.D. Cal. Aug.
25
26
27 3 Plaintiff fails to specify when he was provided a wheelchair, as he also faults Dizon for refusing to
provide one just a few hours earlier. See ECF No. 1-2 at 2 (“Defendant Michael Dizon then told plaintiff
28
1 13, 2024) (“The Complaint does not plausibly allege Defendants should have realized
2 failing to provide Plaintiff with a cane, a walker, a wheelchair or rehabilitation therapy
3 presented a risk to him because there are merely conclusory allegations that the nature of
4 his injury required those things, and no factual allegations Defendants were aware they
5 were necessary.” (citation omitted)). Even were the Court inclined to find Plaintiff has
6 sufficiently alleged a “purposeful act” sufficient to survive screening, Plaintiff again fails
7 to allege any harm caused by Betacourt’s actions in taking his wheelchair and refusing to
8 provide Plaintiff with ADA assistance, both of which he alleges occurred after his fall from
9 the top bunk. See ECF No. 1-2 at 3; see also Jett, 439 F.3d at 1096; Oliver, 289 F.3d at
10 627.
11 Finally, the Court turns to Plaintiff’s allegations against Dr. Ko. Here, Plaintiff
12 acknowledges Defendant Ko examined Plaintiff after his fall and ordered an MRI and x-
13 rays, but alleges Dr. Ko then erroneously concluded “there was nothing wrong with him”
14 and “refused” to refer Plaintiff to a specialist even after a physical therapist recommended
15 one. ECF No. 1-2 at 3. First, the Court finds Plaintiff fails to plausibly allege deliberate
16 indifference arising from Dr. Ko’s treatment immediately after the fall, as he acknowledges
17 Dr. Ko examined him and responded to his post-fall medical need by ordering both x-rays
18 and an MRI. See id.; see also Colwell, 763 F.3d at 1066 (“Deliberate indifference ‘may
19 appear when prison officials deny, delay or intentionally interfere with medical treatment,
20 or it may be shown by the way in which prison physicians provide medical care.’” (quoting
21 Hutchinson, 838 F.2d at 394)); Toguchi, 391 F.3d at 1060. At most, Plaintiff claims Dr.
22 Ko failed to properly discover and diagnose his back injury, or that there was a
23 disagreement between himself and Dr. Ko (as well as between Dr. Ko and the physical
24 therapist) as to whether Plaintiff had suffered an injury from the fall and whether referral
25 to a specialist was warranted. But these allegations, by themselves, fail to state a claim
26 under the Eighth Amendment. See Estelle, 429 U.S. at 106 (“[A] complaint that a physician
27 has been negligent in diagnosing or treating a medical condition does not state a valid claim
28 of medical mistreatment under the Eighth Amendment. Medical malpractice does not
1 become a constitutional violation merely because the victim is a prisoner. In order to state
2 a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to
3 evidence deliberate indifference to serious medical needs.”); Colwell, 763 F.3d at 1068 (“A
4 difference of opinion between a physician and the prisoner—or between medical
5 professionals—concerning what medical care is appropriate does not amount to deliberate
6 indifference.” (internal quotation marks and citation omitted)); Toguchi, 391 F.3d at 1060
7 (“[A] difference of medical opinion . . . cannot support a claim of deliberate indifference.”)
8 That said, the Court finds Plaintiff does state facts sufficient to plausibly allege a
9 claim of deliberate indifference against Dr. Ko based on Ko’s subsequent response to
10 Plaintiff’s continued pain. More specifically, Plaintiff contends he continued to see Dr. Ko
11 for two years for the “[s]evere [p]ain in his back” and asserts that “each time” Dr. Ko again
12 “[r]efused to treat” him. ECF No. 1-2 at 3. Dr. Cane, who later replaced Dr. Ko, eventually
13 referred Plaintiff to a neurologist, who in turn “told the Plaintiff due to the lapse of time
14 from the fall from the top bunk [] now you have nerve damage.” Id. Plaintiff adds the
15 neurologist further opined that had he been seen right after the fall, his nerve damage could
16 have been “[s]topped.” Id. While “a difference of medical opinion . . . cannot support a
17 claim of deliberate indifference,” Toguchi, 391 F.3d at 1060, the Court finds Plaintiff’s
18 allegations concerning Dr. Ko’s subsequent failure to treat him and refer him to a specialist,
19 when coupled with the initial referral recommendation by the physical therapist, the
20 subsequent referral by Dr. Cane, the neurologist’s eventual diagnosis based on the “same”
21 x-rays and MRI Dr. Ko had, and the neurologist’s indication that the delay in treatment
22 resulted in nerve damage which could have been prevented if treated sooner, are sufficient
23 to allege a plausible claim of deliberate indifference. See ECF No. 1-2 at 3–4; Jett, 439
24 F.3d at 1096 (to show deliberate indifference, a plaintiff must allege both “(a) a purposeful
25 act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused
26 by the indifference”). Given Dr. Ko’s continued refusal to provide a referral was contrary
27 to both the physical therapist’s initial recommendation and Dr. Cane’s subsequent referral,
28 both of which were borne out by the neurologist’s diagnosis based on the “same” tests Dr.
1 Ko was privy to, the Court finds Plaintiff has plausibly alleged that Dr. Ko’s failure to refer
2 him to a specialist under the circumstances presented here was “medically unacceptable”
3 and was chosen in “conscious disregard of an excessive risk” to Plaintiff’s health. See
4 Toguchi, 391 F.3d at 1058 (a claim of deliberate indifference can be sustained in a situation
5 where “the chosen course of treatment ‘was medically unacceptable under the
6 circumstances,’ and was chosen ‘in conscious disregard of an excessive risk to [the
7 prisoner’s] health” (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)
8 (alteration in original)).
9 Accordingly, with respect to Plaintiff’s allegations concerning Dr. Ko’s subsequent
10 response to his two years of continued pain after his fall from the top bunk, the Court finds
11 Plaintiff plausibly states an Eighth Amendment deliberate indifference claim against
12 Defendant Ko “sufficient to meet the low threshold for proceeding past the screening
13 stage.” Wilhelm, 680 F.3d at 1123. Meanwhile, Plaintiff’s Eighth Amendment claim
14 against Defendant Betacourt is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)
15 for failure to state a claim. Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121; Iqbal,
16 556 U.S. at 678. As set forth below, Plaintiff will be given the option to amend his
17 Complaint to cure the pleading deficiencies of his dismissed claims or proceed only with
18 the claim which survives screening. See Rosati, 791 F.3d at 1039.
19 3. Plaintiff’s Options
20 Because the Court has determined that only part of Plaintiff’s Eighth Amendment
21 deliberate indifference claim against Defendant Ko survives sua sponte screening and
22 Plaintiff’s remaining claims against all other Defendants do not, the Court provides
23 Plaintiff the option to (1) notify the Court of his intent to proceed only with the Eighth
24 Amendment deliberate indifference claim against Defendant Ko or (2) file an Amended
25 Complaint that corrects all the deficiencies of pleading identified in this Order. Plaintiff
26 must choose one of those two options within forty-five (45) days from the date this Order
27 is issued. If Plaintiff notifies the Court that he wishes to proceed only with the claim which
28 has survived screening, the Court will issue an Order directing the Clerk to issue the
1 summons as to Defendant Ko and will direct the U.S. Marshal to effect service of the
2 summons and Complaint on Ko. However, all other claims as currently alleged against all
3 other Defendants will be dismissed from this action without further leave to amend.
4 III. Conclusion
5 In light of the foregoing, the Court:
6 1) GRANTS Plaintiff’s Motion to Proceed IFP (ECF No. 2).
7 2) DIRECTS the Secretary of the CDCR, or his designee, to collect from
8 Plaintiff’s prison trust account the $73.62 initial filing fee assessed, if those funds are
9 available at the time this order is executed, and forward whatever balance remains of the
10 $350 filing fee owed in this case by collecting monthly payments from the account in an
11 amount equal to twenty percent (20%) of the preceding month’s income and forward
12 payments to the Clerk of the Court each time the amount in the account exceeds $10 in
13 accordance with 28 U.S.C. § 1915(b)(2).
14 3) DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail
15 on Jeff Macomber, Secretary, California Department of Corrections and Rehabilitation,
16 P.O. Box 942883, Sacramento, California, 94283-0001.
17 4) DISMISSES Plaintiff’s Complaint in its entirety for failing to state a claim
18 upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) &
19 1915A(b)(1) with the exception of his Eighth Amendment deliberate indifference claim
20 against Defendant Ko.
21 5) GRANTS Plaintiff forty-five (45) days leave from the date of this Order in
22 which to either: (1) file a Notice of Intent to Proceed with his Eighth Amendment deliberate
23 indifference claim against Defendant Ko only; or (2) file an Amended Complaint
24 correcting the deficiencies of pleading identified in this Order.
25 If Plaintiff chooses to file an amended pleading, his Amended Complaint must be
26 complete by itself without reference to any prior version of his pleading, and any
27 defendants not named and any claims not re-alleged will be considered waived. See S.D.
28 Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,
1 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v.
2 || Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (Claims which are not re-alleged in an
3 ||amended pleading may be “considered waived if not repled.’’)
4 If Plaintiff instead chooses to file a Notice of Intent to Proceed only with the claim
5 || which has survived screening, the Court will issue an Order directing the Clerk to issue a
6 |}summons as to Defendant Ko and will direct the U.S. Marshal to effect service of the
7 ||summons and Complaint upon Ko only. All other claims alleged in Plaintiffs original
8 || Complaint against all other Defendants will be dismissed without further leave to amend.
9 IT IS SO ORDERED.
10 || Dated: July 20, 2026 f
11 on. Janis L. Sammartino
2 United States District Judge
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