GERALD SPENCE V. KELLY SANTORO, No. 19-15898 (9th Cir. 2019)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC 16 2019 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT GERALD SPENCE, U.S. COURT OF APPEALS No. 19-15898 Plaintiff-Appellant, D.C. No. 1:18-cv-01363-LJO-SAB v. MEMORANDUM* KELLY SANTORO, et al., Defendants-Appellees. 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). 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. 2 19-15898

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