Gerald Spence v. Kelly Santoro

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD SPENCE,
Plaintiff-Appellant,
v.
KELLY SANTORO, et al.,
Defendants-Appellees.
No. 19-15898
D.C. No. 1:18-cv-01363-LJO-SAB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted December 11, 2019**
Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.
California state prisoner Gerald Spence appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging deliberate
indifference to his safety and serious medical needs. We have jurisdiction under
28 U.S.C. § 1291. We review de novo the district court’s dismissal under 28
* 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).
FILED
DEC 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 19-15898
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A. Watison v. Carter, 668 F.3d 1108, 1112
(9th Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)); Resnick v. Hayes,
213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We
affirm.
The district court properly dismissed Spence’s action because Spence failed
to allege facts sufficient to state any plausible claims. See Hebbe v. Pliler, 627
F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be construed
liberally, a plaintiff must present factual allegations sufficient to state a plausible
claim for relief); see also Farmer v. Brennan, 511 U.S. 825, 833-34 (1994) (setting
forth elements of a failure-to-protect claim); Maxwell v. County of San Diego, 708
F.3d 1075, 1097 (9th Cir. 2013) (“[T]here is no respondeat superior liability under
§ 1983.”); Toguchi v. Chung, 391 F.3d 1051, 1057-58 (9th Cir. 2004) (setting forth
elements of a medical deliberate indifference claim).
We reject as meritless Spence’s contention that the district court applied a
“different” pleading standard to his claims.
Spence’s “Request for Certificate of Appealability” is denied as
unnecessary.
AFFIRMED.

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