United States District Court, N.D. California
ORDER OF DISMISSAL WITH LEAVE TO AMEND DOCKET NO.
N. CHEN, UNITED STATES DISTRICT JUDGE.
Lomack, a prisoner at the Salinas Valley State Prison, filed
this pro se civil rights action under 42 U.S.C.
§ 1983. His complaint is now before the court for review
under 28 U.S.C. § 1915A.
Lomack alleges the following: He complained to correctional
officer (C/O) Waterman and C/O Smith on an unstated date that
he was in fear “for his life in that Plaintiff was
living with a life term inmate who was manipulative and
instilling fear in Plaintiff.” Docket No. 1 at 3. Mr.
Lomack told psychologist J. Salvidav the same information and
that the circumstances were making him depressed.
Id. at 3-4. Mr. Lomack submitted a CDCR-22 form on
January 2, 2018, informing sergeant Beam that Lomack and his
cellmate “were not getting along and that he
(Plaintiff) needed to be moved to another cell
A.S.A.P.” Id. at 4. Sergeant Beam refused to
separate the cellmates. On January 26, 2018, Mr. Lomack was
knocked unconscious by his cellmate and sustained injuries
that warranted Mr. Lomack being taken to an off-site
federal court must engage in a preliminary screening of any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.
See 28 U.S.C. § 1915A(a). In its review the
court must identify any cognizable claims, and dismiss any
claims which are frivolous, malicious, fail to state a claim
upon which relief may be granted, or seek monetary relief
from a defendant who is immune from such relief. See Id
. at § 1915A(b). Pro se pleadings must be
liberally construed. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two elements: (1) that a right secured by the
Constitution or laws of the United States was violated and
(2) that the violation was committed by a person acting under
the color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988).
Eighth Amendment’s Cruel and Unusual Punishments Clause
requires that prison officials take reasonable measures to
protect prisoners from violence at the hands of other
prisoners. See Farmer v. Brennan, 511 U.S. 825, 833
(1994). The failure of prison officials to protect inmates
from attacks by other inmates or from dangerous conditions at
the prison violates the Eighth Amendment when two
requirements are met: (1) the deprivation alleged is,
objectively, sufficiently serious; and (2) the prison
official is, subjectively, deliberately indifferent to inmate
health or safety. Id. at 834. A prison official is
deliberately indifferent if he knows of and disregards an
excessive risk to inmate health or safety by failing to take
reasonable steps to abate it. Id. at 837. Liberally
construed, the complaint states a cognizable claim against
C/O Smith, C/O Waterman, and correctional sergeant Beam for
deliberate indifference to Mr. Lomack’s safety.
complaint is deficient, however, in two respects. The first
problem concerns psychologist Salvidav. Mr. Lomack alleges
that he told psychologist Salvidav that he feared his
cellmate, but does not allege whether Salvidav failed to do
anything in response to his statements. The allegation in the
complaint does not state a claim because Eighth Amendment
liability would be based on what the defendant does or fails
to do once informed of a safety issue, not simply that the
defendant was informed of a safety issue. Mr. Lomack also
does not list psychologist Salvidav as a defendant in his
complaint. The Court assumes psychologist Salvidav is not an
intended defendant in this case. If Mr. Lomack seeks to state
a claim against psychologist Salvidav, he must amend the
complaint and include him/her on the list of defendants and
allege what the psychologist did or failed to do that shows
deliberate indifference to Mr. Lomack’s safety. The
Court grants leave to amend if Mr. Lomack so seeks.
other problem with the complaint is that there are three
defendants listed as to whom there are no allegations. C/O
Ceveda, C/O Lucio, and C/O Gutierrez are listed as
defendants, but are not mentioned in the description of Mr.
Lomack’s claim. Leave to amend is granted so that Mr.
Lomack may attempt to state a claim against one or more of
these three defendants. Any defendant as to whom a claim is
not alleged in the amended complaint will be dismissed.
complaint fails to state a claim against defendants Ceveda,
Lucio, and Gutierrez, or against Salvidav. Leave to amend is
granted so that Plaintiff may attempt to allege claim(s)
against these persons in an amended complaint. He also must
repeat his claims against defendants Waterman, Smith and Beam
in his amended complaint because the amended complaint must
be a complete statement of all of his claims. See Lacey
v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012)
(en banc) (“For claims dismissed with prejudice and
without leave to amend, we will not require that they be
repled in a subsequent amended complaint to preserve them for
appeal. But for any claims voluntarily dismissed, we will
consider those claims to be waived if not repled.”).
The amended complaint must be filed no later than
October 31, 2019, and must include the
caption and civil case number used in this order and the
words AMENDED COMPLAINT on the first page. Failure to file
the amended complaint by the deadline will result in the
dismissal of defendants against whom a claim is not stated.