1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KORY T. O’BRIEN, Case No. 2:23-cv-01771-JDP (PC) 12 Plaintiff, SCREENING ORDER FINDING THAT

THE COMPLAINT FAILS TO STATE A

13 v. COGNIZABLE CLAIM AND GRANTING

AN OPPORTUNITY TO AMEND

14 R. TIMMS, et al., ECF No. 1 15 Defendants.

ORDER GRANTING PLAINTIFF’S

16 APPLICATION TO PROCEED IN FORMA

PAUPERIS

17 ECF Nos. 6 18 19 20 21 Plaintiff, a state prisoner, alleges that defendants Timms and Strickland have violated his 22 Eighth Amendment rights by failing to protect him from future harm of Covid-19 exposure. ECF 23 No. 1 at 6. These allegations are, for the reasons stated below, insufficient to proceed past 24 screening. I will give plaintiff an opportunity to amend and grant his application to proceed in 25 forma pauperis. ECF No. 6. 26

27 28 1 Screening Order 2 I. Screening and Pleading Requirements 3 A federal court must screen a prisoner’s complaint that seeks relief against a governmental 4 entity, officer, or employee. See 28 U.S.C. § 1915A(a). The court must identify any cognizable 5 claims and dismiss any portion of the complaint that is frivolous or malicious, fails to state a 6 claim upon which relief may be granted, or seeks monetary relief from a defendant who is 7 immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2). 8 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 9 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 10 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 11 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 13 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 14 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 15 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 16 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 17 n.2 (9th Cir. 2006) (en banc) (citations omitted). 18 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 19 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 20 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 21 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 22 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 23 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 24 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 25 26 27 28 1 II. Analysis 2 As stated above, plaintiff alleges that defendants have failed to protect him from the future 3 harm of Covid-19 exposure. ECF No. 1 at 6. He alleges that underlying health conditions 4 necessitate single-cell housing to reduce the risk of contracting the disease, and that defendants 5 have housed him in a nine-man dorm since his return to the California Medical Facility. Id. at 3. 6 Prisoner claims for future harm are cognizable under the Eighth Amendment. See Helling v. 7 McKinney, 509 U.S. 25, 33 (1993) (“That the Eighth Amendment protects against future harm to 8 inmates is not a novel proposition.”). The Supreme Court has also stated, however, that 9 “threatened injury must be certainly impending to constitute injury in fact, and that [a]llegations 10 of possible future injury are not sufficient.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 11 (2013). The injury at issue here is not sufficiently particularized. The harm alleged is that, by 12 being housed with other inmates rather than in a single-man cell, plaintiff’s chances of 13 contracting Covid-19 have increased by some unknown probability. Complicating matters are 14 plaintiff’s allegations that he suffers from some underlying heart issue that make Covid-19 a 15 greater risk to him. ECF No. 1 at 4. He offers no specifics as to the condition or how it makes 16 him more vulnerable to the virus, however. All prisoners, and indeed all people, suffer some 17 degree of exposure to a virus that, as of late 2023, is widely dispersed throughout the country. If 18 this action is to proceed, plaintiff must better explain how he expects to suffer if he contracts 19 Covid-19 and why his circumstances present the special case where additional exposure amounts 20 to an Eighth Amendment violation. 21 Plaintiff may amend his complaint. He is advised that the amended complaint will 22 supersede the current complaint. See Lacey v. Maricopa County, 693 F. 3d 896, 907 n.1 (9th Cir. 23 2012) (en banc). The amended complaint should be titled “First Amended Complaint” and refer 24 to the appropriate case number. 25 Accordingly, it is ORDERED that: 26 1. Within thirty days from the service of this order, plaintiff may file an amended 27 complaint. If he does not, I will recommend this action be dismissed for failure to state a claim. 28 2. The Clerk of Court shall send plaintiff a section 1983 complaint form with this order. 1 3. Plaintiff's application to proceed in forma pauperis, ECF No. 6, is GRANTED. 2 3 IT IS SO ORDERED. 4 ( _ Dated: _ December 5, 2023 Q————. 5 JEREMY D. PETERSON 6 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28