NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENTHA MCDOWELL,

Plaintiff

- Appellant,

v.

ROBERT W. FOX, Warden, California Medical Facility; D. ARTIS, Captain; CHIEF MEDICAL OFFICER; NICKOLAS LIND, Dr.; DAVID LONG, Assistant Warden,

Defendants

- Appellees. No. 19

- 55867

D.C. No.
2:19

- cv

- 00086

- JVS

- MRW

MEMORANDUM *

Appeal from the United States District Court
for the Central District of California James V. Selna, District Judge, Presiding

Submitted October 8, 2020 * * Pasadena, California

Before: M. SMITH and LEE, Circuit Judges, and CARDONE, ** * District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. 

# FILED

OCT 30 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS2

Kentha McDowell asks this court to reverse the dismissal of his Section 1983

claims alleging that various prison officials violated his Eighth Amendment rights.

42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1331, and we affirm.

1. McDowell first allege s that another inmate punched him in the face

,

and that several prison officials were deliberately indifferent to this attack. To

prevail on an Eighth Amendment deliberate indifference claim, a plaintiff must

establish two elements. First, “an inmate must objectively show that he was

deprived of something ‘sufficiently serious.’” Foster v. Runnels , 554 F.3d 807, 812

(9th Cir. 2009) (quoting Farmer v. Brennan , 511 U.S. 825, 83 4 (1994) ). Second,

the inmate must then “make a subjective showing that the deprivation occurred with

deliberate indifference to the inmate’s health or safety.” Id. ( citing Farmer , 511 U.S.

at 834 ). For an official to act with deliberate indifference, “the officia l must both be

aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.” Farmer , 511 U.S. at 83 7

.

McDowell fails to state a deliberate indifference claim. He alleged that certain

prison officials “ should have known” that his attacker was mentally ill and that this

mental illness made it likely that he woul d attack McDowell. But under Farmer

,

defendants must have actual knowledge. 511 U.S. at 83 7

. And even if the defendan ts

actually knew that McDowell’s a ssailant was mentally ill, he fails to allege that any

of the defendants were on notice that this mental illness posed a danger

. McDowell3

never explains the nature of his attacker’s mental illness, nor does he allege that his

attacker had a history of violence

.

2. McD owell also alleges that certain other prison officials violated his

Eighth Amendment right by failing to give him a “ heart

- healthy ” diet. As an initial

matter, the statute of limitations bars his claim. A section 1983 claim accrues when

the plaintiff knows or has reason to know of the injury that is the basis of the claim.

See Pouncil v. Tilton , 704 F.3d 568, 573

– 74 (9th Cir. 2012). I n California, the

relevant limitation period is two years. S ee Butler v. Nat’l Cmty. Renaissance of

Cal. , 766 F.3d 1191, 1198 (9th Cir. 2014).

The parties agree that McDowell became aware of his heart

- related injury by

2008. McDowell may be entitled to two years of tolling based on his imprisonment

,

s ee Jones v. Blanas , 393 F.3d 918, 92 7

- 2 8 (9th Cir. 2004) , as well as eighteen months

for time he spent in the administrative grievance process. See Brown v. Valoff , 422

F.3d 926, 942

- 43 (9th Cir. 2005). But even granting these extensions, the statute of

limitatio ns ran no later than 2013

. McDowell first raised this claim in 201 7

. The

statute of limitation s has therefore expired. Equitable tolling is also inappropriate

because McDowell had numerous opportunities to file this claim, and, after ten

years, there is a substantial risk that “ evidence has been lost ” and “ memories have

faded

. ” See Butler v. Nat’l Cmty. Renaissance of Cal ., 766 F.3d at 1204 (quoting

Elkins v. Derby , 525 P.2d 81, 86 ( Cal. 1974)).4

Even on the merits, McDowell fails to state a claim. A lthough he alleges that

the defendants knew about his pre

- existing heart condition, he does not allege fact s

sufficient to show that they knew he required a specific heart healthy diet, much less

that failing to provide this diet posed a substantial risk of serious harm to him.

AFFIRMED.