(PC) Coffer v. Ericson

• Court: District Court, E.D. California
• Decided: February 6, 2025
• Docket: 2:23-cv-02474
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN CHRISTOPHER COFFER, No. 2:23-cv-2474 AC P 12 Plaintiff, 13 v. ORDER 14 ERICSON, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner who filed this civil rights action pursuant to 42 U.S.C. § 1983 18 without a lawyer. On September 20, 2024, the court granted plaintiff’s motion to proceed in 19 forma pauperis, denied plaintiff’s motions for appointment of counsel, denied plaintiff’s motions 20 for subpoenas as premature, found that plaintiff failed to state a claim upon which relief may be 21 granted, and granted plaintiff leave to file an amended complaint. ECF No. 42 at 1-2, 6-9. Now 22 pending before the court are plaintiff’s first amended complaint, requests for status, and motions 23 for subpoenas and to appoint counsel. ECF Nos. 45-48, 50. For the reasons stated below, the 24 court will (1) provide plaintiff the option to proceed on the cognizable claims the court has 25 identified in Section VI below or amend the complaint, (2) grant plaintiff’s requests for status, 26 and (3) deny plaintiff’s motion for subpoenas and motion for appointment of counsel. 27 //// 28 //// 1 I. Requests for Status 2 Plaintiff’s requests for status are granted to the extent the status of the case has been 3 provided above. 4 II. Motion for Subpoenas 5 Both the FAC and a separate motion for subpoenas seek to subpoena documents related to 6 plaintiff’s claims. ECF No. 45 at 2; ECF No. 46 at 4, 258, 267. Because this case is still at the 7 screening stage and no defendant has been served, plaintiff’s request and motion for subpoenas 8 are denied as premature. In the event any defendant is served and files an answer, a schedule will 9 be set for discovery at that time. 10 For future purposes, plaintiff is cautioned that if he seeks assistance in serving subpoenas, 11 he must make a showing that such assistance is warranted, which includes showing that he cannot 12 receive the documents he seeks by way of discovery requests to defendants. Failure to make this 13 showing will result in denial of a motion for subpoenas. 14 III. Motion for Appointment of Counsel 15 Pending before the court is plaintiff’s sixth motion to appoint counsel, which was filed 16 only a month after the court denied plaintiff’s first five motions. See ECF Nos. 42, 47. A 17 comparison of the sixth motion with the prior five motions provides no new, persuasive 18 information that warrant a different result. See ECF Nos. 14, 22, 24, 27, 31, 47. The only new 19 statement is that plaintiff will be requesting a mental health evaluation under Federal Rule of 20 Civil Procedure 35. ECF No. 47. Because district courts lack the authority to require counsel to 21 represent indigent prisoners in § 1983 cases, Mallard v. United States Dist. Court, 490 U.S. 296, 22 298 (1989), and there appear to be no exceptional circumstances for the court to request voluntary 23 assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1), Terrell v. Brewer, 935 F.2d 1015, 1017 24 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990), the court denies 25 plaintiff’s motion. 26 IV. Statutory Screening of Prisoner Complaints 27 The court is required to screen complaints brought by prisoners seeking relief against “a 28 governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). A 1 claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. 2 Williams, 490 U.S. 319, 325 (1989). The court may dismiss a claim as frivolous if it is based on 3 an indisputably meritless legal theory or factual contentions that are baseless. Neitzke, 490 U.S. 4 at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an 5 arguable legal and factual basis. See Jackson v. State of Ariz., 885 F.2d 639, 640 (9th Cir. 1989). 6 In order to avoid dismissal for failure to state a claim a complaint must contain more than 7 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 8 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, 9 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 10 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim upon which the 11 court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial 12 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 13 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When 14 considering whether a complaint states a claim, the court must accept the allegations as true and 15 construe the complaint in the light most favorable to the plaintiff. Northstar Fin. Advisors, Inc. v. 16 Schwab Invs., 904 F.3d 821, 828 (9th Cir. 2018). 17 V. Factual Allegations of the Complaint1 18 The first amended complaint (“FAC”) alleges that defendants Saltz, Costa, Edwards, 19 Grigsby, Ericsson, Prasad, and unnamed doctors and nurses (“Doe defendants”)2 at California 20 State Prison Sacramento (“CSP-Sac”), in their individual capacities, and the California 21 Department of Corrections and Rehabilitation (“CDCR”), violated plaintiff’s rights under the 22

23 1 The FAC consists of a total of 279 pages. ECF No. 46. Seventeen non-consecutive pages appear to make up the body of the complaint. Id. at 1-6, 11, 13, 24, 26-28, 31, 33, 258, 267, 279. 24 The other 262 pages are exhibits, id. at 7-10, 12, 14-23, 25, 29-30, 32, 34-257, 259-266, 268-278, which will not be considered as part of the screening process. It is not the court’s responsibility to 25 sift through plaintiff’s exhibits to attempt to decipher what specific claims he may be attempting 26 to make against defendants, and analysis of plaintiff’s claims will be based only on the allegations contained within the body of the complaint itself. 27 2 Plaintiff refers to some defendants as unknown doctors and nurses and seeks to subpoena their names so that he can name them in this case. For the sake of clarity, the court will refer to them 28 as Doe defendants. 1 Eighth Amendment. ECF No. 46.3 Specifically, plaintiff alleges that Saltz and Costa were 2 deliberately indifferent to his medical needs and safety when, in April of 2021, plaintiff told Saltz 3 and Costa he was suicidal and that he had been cutting his wrist in an attempt to kill himself. Id. 4 at 3, 27, 28, 31, 33. Plaintiff showed Saltz and Costa the three cuts on his wrist, which he alleges 5 are still present today, and that he told them he was hearing voices and that he wanted to kill 6 himself. Id. at 27, 28, 31. Saltz and Costa were dismissive and sent him back to his cell. Id. at 7 28, 31, 33. Because of this plaintiff spiraled into a greater depression and tried to kill himself a 8 few more times. Id. at 3. 9 Plaintiff also alleges that on July 21, 2021, he was having a hard time coping, was 10 “hearing an excessive amount of voices,” and tried to kill himself by suffocation. Id. at 13. He 11 fainted and while he was unconscious, Edwards, Ericsson, and another officer attacked him with 12 riot gear, jumped on him, pulled him side to side, and handcuffed and shackled him, knocking the 13 wind out of him, causing injury to his ankles and emotional distress. Id. at 6, 11, 13. He further 14 claims that Edwards, Ericsson, and another officer failed to immediately call medical after finding 15 plaintiff unconscious in his cell after a suicide attempt. Id. at 11. 16 Plaintiff also alleges that Doe defendants were deliberately indifferent to his medical 17 needs and safety on July 21, 2021, because, despite knowing that he tried to suffocate himself and 18 had fainted and hit his head, they failed to send him to the hospital for treatment and failed to 19 send him to a mental health crisis bed. Id. at 24, 267. Plaintiff claims that because of these Doe 20 defendants’ actions or inaction, he now suffers from headaches. Id. at 24. 21 Plaintiff further alleges that Prasad was deliberately indifferent to his medical needs and 22 safety between July 21, 2021 and October 30, 2021, because Prasad failed to send plaintiff to an 23 outside hospital for a medical evaluation after he tried to suffocate himself, and failed to admit 24 3 Plaintiff does not list Prasad or CDCR as a defendant in the caption or “Defendants” section of 25 his FAC. See ECF No. 46 at 1-2. However, plaintiff identifies Prasad and CDCR as defendants 26 and makes allegations against them in the complaint. Id. at 26, 279. While the court will address the allegations against these defendants here, if plaintiff chooses to amend the complaint, he is 27 cautioned that, in an amended complaint, all individuals and entities he intends as defendants must be listed in the caption or “Defendants” section of the complaint or they will not be 28 considered defendants. 1 him to a crisis bed for a mental health evaluation and/or send him to a higher level of care until 2 October 2021. Id. at 26. 4 Plaintiff claims that because Prasad failed to do these things, he went 3 through three months of emotional distress and tried to kill himself on three separate occasions 4 after the July 21, 2021, incident. Id. 5 Lastly, plaintiff alleges that CDCR is liable for deliberate indifference because defendants 6 Saltz and Costa provided inadequate mental health care and failed to automatically send him to a 7 crisis bed. Id. at 279. Plaintiff seeks monetary damages and an order from the court requiring 8 CDCR “to make a policy if an inmate is stating suicidal, has self harm injuries or attempted to kill 9 themselves, CDCR should automatically send that person to a mental health crisis bed.” Id. at 5, 10 279. 11 VI. Claims for Which a Response Will Be Required 12 After conducting the screening required by 28 U.S.C. § 1915A(a), the court finds that 13 plaintiff has adequately stated valid claims for relief pursuant to the Eighth Amendment against 14 defendants Saltz, Costa, Edwards, Ericsson, and Prasad for deliberate indifference, and against 15 Edwards and Ericsson for excessive force. 16 Defendants Saltz, Costa, Edwards, Ericsson and Prasad were allegedly aware of plaintiff’s 17 suicidal thoughts and/or attempts, and therefore aware of plaintiff’s serious medical need, yet they 18 delayed and/or denied plaintiff any form of treatment. Defendants Saltz, Costa, and Prasad were 19 allegedly aware that plaintiff was suicidal, and that keeping plaintiff in his current housing 20 conditions where he had self-harmed presented a substantial risk of serious harm to plaintiff. 21 Additionally, defendants Edwards and Ericsson allegedly attacked plaintiff with riot gear, jumped 22 on him, and handcuffed and shackled him while unconscious, and failed to stop the attack by the 23 other officers. These allegations state cognizable Eighth Amendment claims. 24 VII. Failure to State a Claim 25 The allegations in the complaint are not sufficient to state any claim for relief against 26 Grigsby, the Doe defendants, or CDCR. Plaintiff names defendant Grigsby on the caption page 27 4 Although plaintiff does not explicitly state Prasad engaged in these actions, the court infers as 28 much since plaintiff labeled this claim “Sangita Prasad Claim.” ECF No. 46 at 26. 1 but does not separately allege anything that Grigsby did or did not do to violate his rights. With 2 respect to Doe defendants, although plaintiff need not identify each defendant by name at this 3 stage of the litigation, plaintiff must still identify each defendant separately and alleged what each 4 defendant did or did not do that violated his rights, which he has not done. The court is therefore 5 unable to determine, at this time, whether plaintiff has stated any cognizable claim against Doe 6 defendants. Lastly, CDCR is not a “person” for purposes of § 1983 liability and the Eleventh 7 Amendment bars suits against CDCR. 8 VIII. Options from Which Plaintiff Must Choose 9 Based on the court’s screening, plaintiff has a choice to make. After selecting an option 10 from the two options listed below, plaintiff must return the attached Notice of Election form to 11 the court within 21 days from the date of this order. 12 The first option available to plaintiff is to proceed immediately against defendants 13 Saltz, Costa, Edwards, Ericsson and Prasad for deliberate indifference, and Edwards and 14 Ericsson for excessive force under the Eighth Amendment. By choosing this option, 15 plaintiff will be agreeing to voluntarily dismiss defendants Grigsby, Doe defendants, and 16 CDCR. The court will proceed to immediately serve the complaint and order a response 17 from defendant Saltz, Costa, Edwards, Ericsson, and Prasad. 18 The second option available to plaintiff is to file an amended complaint to fix the 19 problems described in Section VII against defendant Grigsby and Doe defendants. If 20 plaintiff chooses this option, the court will set a deadline in a subsequent order to give 21 plaintiff time to file an amended complaint. 22 IX. Plain Language Summary of this Order for Party Proceeding Without a Lawyer 23 Some of the allegations in the complaint state claims against the defendants and some do 24 not. You have stated claims against (1) defendants Saltz, Costa, Edwards, Ericsson, and Prasad 25 for deliberate indifference, and (2) defendants Edwards and Ericsson for excessive force. You 26 have not stated any other claims against any defendants. 27 You have a choice to make. You may either (1) proceed immediately on your claims 28 against Saltz, Costa, Edwards, Ericsson, and Prasad for deliberate indifference, and Edwards and 1 || Ericsson for excessive force and voluntarily dismiss the other claims; or, (2) try to amend the 2 || complaint. To decide whether to amend your complaint, the court has attached the relevant legal 3 || standards that may govern your claims for relief. See Attachment A. Pay particular attention to 4 || these standards if you choose to file an amended complaint. 5 X. CONCLUSION 6 In accordance with the above, IT IS HEREBY ORDERED that: 7 1. Plaintiffs requests for status (ECF Nos. 45, 48, 50) are GRANTED. 8 2. Plaintiff's motion for subpoenas (ECF No. 45) is DENIED as premature. 9 3. Plaintiffs motion for appointment of counsel (ECF No. 47) is DENIED. 10 4. Plaintiff's claims against defendants Grigsby, Doe defendants, and CDCR do not state 11 | claims for which relief can be granted. 12 5. Plaintiff has the option to proceed immediately on his deliberate indifference and 13 || excessive force claims against defendants Saltz, Costa, Edwards, Ericsson, and Prasad as set forth 14 | in Section VI above, or to file an amended complaint. 15 6. Within 21 days from the date of this order, plaintiff shall complete and return the 16 || attached Notice of Election form notifying the court whether he wants to proceed on the screened 17 || complaint or whether he wants to file an amended complaint. 18 7. If plaintiff decides he would like to amend the complaint, the Second Amended 19 || Complaint will be limited to no longer than twenty-five (25) pages in length and should not rely 20 || on exhibits. Instead, plaintiff should explain to the court what each defendant did or did not do in 21 || the body of the complaint, and comply with the Federal Rules of Civil Procedure, including Rule 22 || 8(a), which requires a short and plain statement of the claims and relief sought. 23 8. If plaintiff does not return the form, the court will assume that he is choosing to 24 || proceed on the complaint as screened and will recommend dismissal without prejudice of 25 | plaintiffs claims against Grigsby, Doe defendants, and CDCR. 26 || DATED: February 6, 2025 □ Ctlhter— Lane 27 ALLISONCLAIRE 28 UNITED STATES MAGISTRATE JUDGE

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JONATHAN CHRISTOPHER COFFER, No. 2:23-cv-2474 AC P 11 Plaintiff, 12 v. NOTICE OF ELECTION 13 ERICSON, et al., 14 Defendants. 15 16 Check one: 17 _____ Plaintiff wants to proceed immediately on his deliberate indifference and excessive force 18 claims against defendants Saltz, Costa, Edwards, Ericsson, and Prasad without amending 19 the complaint. Plaintiff understands that by choosing this option, the remaining claims 20 against defendants Grigsby, Doe defendants, and CDCR will be voluntarily dismissed 21 without prejudice pursuant to Federal Rule of Civil Procedure 41(a). 22 23 _____ Plaintiff wants time to file an amended complaint. 24 25 DATED:_______________________

26 Jonathan Christopher Coffer Plaintiff pro se 27 28 1 Attachment A 2 This Attachment provides, for informational purposes only, the legal standards that may 3 apply to your claims for relief. Pay particular attention to these standards if you choose to file an 4 amended complaint. 5 I. Legal Standards Governing Amended Complaints 6 If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions 7 about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode, 8 423 U.S. 362, 370-71 (1976). Also, the complaint must specifically identify how each named 9 defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 10 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or 11 connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 12 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 13 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents of Univ. of 14 Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (citations omitted). 15 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 16 his amended complaint complete. See Local Rule 220. This is because, as a general rule, an 17 amended complaint replaces the prior complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) 18 (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 19 2012). Therefore, in an amended complaint, every claim and every defendant must be included. 20 II. Legal Standards Governing Substantive Claims for Relief 21 A. Section 1983 22 Section 1983 provides in relevant part: 23 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of 24 Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the 25 deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action 26 at law, suit in equity, or other proper proceeding for redress . . . . 27 42 U.S.C. § 1983. Accordingly, “the requirements for relief under [§] 1983 have been articulated 28 as: (1) a violation of rights protected by the Constitution or created by federal statute, (2) 1 proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.” Crumpton v. 2 Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). 3 B. Eleventh Amendment and Official Capacity Claims 4 “The Eleventh Amendment bars suits against the State or its agencies for all types of 5 relief.” See Krainski v. Nevada ex rel. Bd. of Regents of Nevada Sys. of Higher Educ., 616 F.3d 6 963, 967 (9th Cir. 2010); Fireman’s Fund Ins. Co., v. City of Lodi, Cal., 302 F.3d 928, 957 n.28 7 (9th Cir. 2002) (“The Eleventh Amendment bars suits which seeks either damages or injunctive 8 relief against a state, ‘an arm of the state’, its instrumentalities, or its agencies.”). A suit against 9 CDCR is barred by the Eleventh Amendment. Brown v. California Dep't of Corr., 554 F.3d 747, 10 752 (9th Cir. 2009); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 65 (1989) (only 11 “person[s]” may be sued for depriving civil rights under § 1983, and states are not “person[s]” 12 within the meaning of § 1983). 13 The Eleventh Amendment, however, does not bar suits seeking damages against state 14 officials in their individual capacities. Hafer v. Melo, 502 U.S. 21, 30-31 (1991). Nor does it bar 15 suits seeking only prospective declaratory or injunctive relief against state officers sued in their 16 official capacities. Will, 491 U.S. at 71 (state officials sued in their official capacity for 17 prospective relief are “person[s]” within the meaning of § 1983”). 18 C. Doe Defendants 19 Although the use of Doe defendants (unknown defendants) is acceptable to withstand 20 dismissal at the initial screening stage, service of process for these defendants will not be ordered 21 until such time as plaintiff has: 1) identified them by their real names through discovery; and, 2) 22 filed a motion to amend the complaint to substitute their real names. See Mosier v. Cal. Dep't of 23 Corr. & Rehab., No. 1:11-cv-1034 MJS PC, 2012 WL 2577524, at *3, 2012 U.S. LEXIS 92286, 24 at *8 (E.D. Cal. July 3, 2012), Robinett v. Corr. Training Facility, No. C 09-3845 SI (PR), 2010 25 WL 2867696, at *4, 2010 U.S. Dist. LEXIS 76327, at *12-13 (N.D. Cal. July 20, 2010). 26 Additionally, to state a claim against Doe defendants, plaintiff must allege conduct by each 27 specific Doe defendant to establish liability under 42 U.S.C. § 1983. This means that plaintiff 28 should identify each Doe defendant separately (e.g., Doe 1, Doe 2, etc.) and explain what each 1 individual did to violate his rights. 2 D. Personal Involvement 3 The civil rights statute requires that there be an actual connection or link between the 4 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 5 Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978); Rizzo v. Goode, 423 6 U.S. 362 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation 7 of a constitutional right, within the meaning of section 1983, if he does an affirmative act, 8 participates in another’s affirmative acts or omits to perform an act which he is legally required to 9 do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 10 (9th Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff 11 must link each named defendant with some affirmative act or omission that demonstrates a 12 violation of plaintiff’s federal rights. 13 E. Deliberate Indifference to Medical Needs 14 Denial or delay of medical care for a prisoner’s serious medical needs may constitute a 15 violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S. 16 97, 104-05 (1976). An individual is liable for such a violation only when the individual is 17 deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d 18 1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. 19 Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000). 20 In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439 21 F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other 22 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the 23 plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s 24 condition could result in further significant injury or the ‘unnecessary and wanton infliction of 25 pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he 26 existence of an injury that a reasonable doctor or patient would find important and worthy of 27 comment or treatment; the presence of a medical condition that significantly affects an 28 individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d 1 at 1131-1132, citing McGuckin, 974 F.2d at 1059-60. “A heightened suicide risk or an attempted 2 suicide is a serious medical need.” See Conn. v. City of Reno, 591 F.3d 1081, 1095 (9th Cir. 3 2010), vacated by City of Reno, Nev. v. Conn, 563 U.S. 915 (2011), reinstated in relevant part by 4 Conn v. City of Reno, 658 F.3d 897 (9th Cir. 2011). 5 Second, the plaintiff must show the defendant’s response to the need was deliberately 6 indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act 7 or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 8 indifference. Id. Under this standard, the prison official must not only “be aware of facts from 9 which the inference could be drawn that a substantial risk of serious harm exists,” but that person 10 “must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). This “subjective 11 approach” focuses only “on what a defendant’s mental attitude actually was.” Id. at 839. A 12 showing of merely negligent medical care is not enough to establish a constitutional violation. 13 Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A 14 difference of opinion about the proper course of treatment is not deliberate indifference, nor does 15 a dispute between a prisoner and prison officials over the necessity for or extent of medical 16 treatment amount to a constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 17 (9th Cir. 2004); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of 18 medical treatment, “without more, is insufficient to state a claim of deliberate medical 19 indifference.” Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 20 Where a prisoner alleges that delay of medical treatment evinces deliberate indifference, the 21 prisoner must show that the delay caused “significant harm and that Defendants should have 22 known this to be the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060. 23 F. Deliberate Indifference to Safety – Failure to Protect 24 “[A] prison official violates the Eighth Amendment only when two requirements are met. 25 First, the deprivation alleged must be, objectively, sufficiently serious; a prison official’s act or 26 omission must result in the denial of the minimal civilized measure of life’s necessities.” Farmer 27 v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citations omitted). Second, 28 the prison official must subjectively have a sufficiently culpable state of mind, “one of deliberate 1 indifference to inmate health or safety.” Id. (internal quotation marks and citations omitted). The 2 official is not liable under the Eighth Amendment unless he “knows of and disregards an 3 excessive risk to inmate health or safety.” Id. at 837. He must then fail to take reasonable 4 measures to lessen the substantial risk of serious harm. Id. at 847. Negligent failure to protect an 5 inmate from harm is not actionable under § 1983. Id. at 835. 6 Police officers have a duty to intervene when fellow officers violate the constitutional 7 rights of a suspect or other citizen. Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000), 8 as amended (Oct. 31, 2000) (citation omitted). At the same time, however, they may only be held 9 liable for failure to intervene if they had an opportunity to do so. See id. at 1289-90 (citing 10 Bruner v. Dunaway, 684 F.2d 422, 426-27 (6th Cir. 1982) (holding officers who were not present 11 at time of alleged assault could not be held liable in a Section 1983 action)). The failure to 12 intervene violates a prisoner’s Eighth Amendment rights. See Robins v. Meecham, 60 F.3d 1436, 13 1442 (9th Cir. 1995). 14 G. Excessive Force 15 The Eighth Amendment prohibits prison officials from inflicting cruel and unusual 16 punishment on inmates which has been defined as “the unnecessary and wanton infliction of 17 pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). “[W]henever prison officials stand accused 18 of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the 19 core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore 20 discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 21 (1992). The court’s inquiry into an excessive force claim focuses on the extent of the prisoner’s 22 injury, the need for application of force, the relationship between that need and the amount of 23 force used, the threat reasonably perceived by the responsible officials, and any efforts made to 24 temper the severity of a forceful response. Hudson, 503 U.S. at 7 (quotation marks and citations 25 omitted). While the absence of a serious injury is relevant to the Eighth Amendment inquiry, it 26 does not end it. Hudson, 503 U.S. at 7. The malicious and sadistic use of force to cause harm 27 always violates contemporary standards of decency in violation of the Eighth Amendment. 28 Whitley, 475 U.S. at 327.