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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ROLANDO GARZA, 

Plaintiff(s),

 vs.

A. J. GARCIA, et al.,

Defendant(s). 

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No. C 09-2583 CRB (PR)

ORDER OF DISMISSAL

(Docket # 6 & 10)

Plaintiff, a prisoner currently incarcerated at High Desert State Prison, has

filed a pro se civil rights complaint for damages under 42 U.S.C. § 1983 alleging

wrongdoing on the part of prison officials at Salinas Valley State Prison. 

DISCUSSION

A. Standard of Review

Federal courts must engage in a preliminary screening of cases in which

prisoners seek redress from a governmental entity or officer or employee of a

governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable

claims or dismiss the complaint, or any portion of the complaint, if the complaint

"is frivolous, malicious, or fails to state a claim upon which relief may be

granted," or "seeks monetary relief from a defendant who is immune from such

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relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri

v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

To 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 alleged violation was committed by a person acting

under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

B. Legal Claims

Plaintiff alleges that on August 21, 2008, while he was incarcerated at

Salinas Valley State Prison ("SVSP"), he slipped and injured himself trying to

open a shower door. Plaintiff claims that Correctional Officer A. J. Garcia is

liable for his injuries because Garcia told him to pull on the door when it would

not open and because Garcia picked him up from the floor after he slipped. 

According to plaintiff, Garcia should have known not to move an injured person. 

Plaintiff further alleges that after he got up, took a shower and returned to

his cell, he told Correctional Officer Rodriguez that he needed medical attention. 

Rodriguez responded that he would ask the nurse to stop by, but the nurse did not

stop by until more than an hour later. Plaintiff claims that Garcia's and

Rodriguez's failure to get him medical help sooner amounted to "clear

negligence." 

Neither negligence nor gross negligence is actionable under § 1983 in the

prison context. See Farmer v. Brennan, 511 U.S. 825, 835-36 & n.4 (1994). 

The applicable standard is one of deliberate indifference to inmate health or

safety under the Eighth Amendment. Id. at 834. A prison official cannot be held

liable under § 1983 for denying an inmate humane conditions of confinement

unless the standard for criminal recklessness is met, i.e., the official knows of and

disregards an excessive risk to inmate health or safety. Id. at 837. 

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Although regrettable, plaintiff's allegations with regards to Garcia's

alleged role in plaintiff's slip and fall fail to state a claim upon which relief may

be granted under § 1983. Perhaps Garcia should not have asked plaintiff to pull

on the shower door and perhaps Garcia should not have picked up plaintiff from

the floor after he slipped. But this at most states a claim for negligence or gross

negligence not cognizable under § 1983. See id. at 835-36 & n.4. It is not

enough to state a claim for deliberate indifference to plaintiff's health and safety

needs under the Eighth Amendment. See id. at 837.

And for essentially the same reasons, plaintiff's allegations that Garcia's

and Rodriguez's failure to get him medical help sooner amounted to "clear

negligence" also fail to state a claim upon which relief may be granted under §

1983. There is no indication that either Garcia or Rodriguez knew that plaintiff

needed emergency medical attention – plaintiff was able to get up, take a shower

and return to his cell. And as soon plaintiff asked for medical attention he was

told that a nurse would come by shortly. The one or so hour delay that ensued 

was not so excessive as to raise an inference of deliberate indifference. See, e.g.,

Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (rejecting claims stemming

from alleged delays in administering pain medication, treating broken nose and

providing replacement crutch because claims did not amount to more than

negligence); O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990) (failing to

satisfy requests for aspirins and antacids to alleviate headaches, nausea and pains

is not constitutional violation; isolated occurrences of neglect may constitute

grounds for medical malpractice but do not rise to level of unnecessary and

wanton infliction of pain). Again, plaintiff's allegations do not amount to more

than a claim for negligence or gross negligence not cognizable under § 1983.

/

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To be sure, plaintiff was injured and may be bring a claim for negligence

or gross negligence in the state court. But he cannot do so here simply by

invoking § 1983. 

CONCLUSION

For the foregoing reasons, the complaint is DISMISSED for failure to

state claim under the authority of 28 U.S.C. § 1915A(b). 

The clerk shall enter judgment in accordance with this order, terminate all

pending motions (see docket # 6 & 10) as moot, and close the file. 

SO ORDERED.

DATED: Jan. 11, 2010 

CHARLES R. BREYER

United States District Judge

G:\PRO-SE\CRB\CR.09\Garza, R1.dismissal.wpd

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