Opinion

7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9

10 BENJAMIN FLOURNOY, Case No.: 26cv0229-WQH (DEB) 11 CDCR #F-25814, 12 ORDER: Plaintiff, 13 vs. (1) GRANTING FIRST MOTION TO PROCEED IN FORMA PAUPERIS, 14 15 WARDEN ACEVEDO, et al., (2) DENYING AS MOOT SECOND 16 Defendants. MOTION TO PROCEED IN FORMA PAUPERIS, and 17 18 (3) DISMISSING COMPLAINT WITH LEAVE TO AMEND PURSUANT TO 19 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 20 21 Plaintiff Benjamin Flournoy (“Plaintiff”), a state prisoner proceeding pro se, has 22 filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff has also 23 filed two Motions to proceed in forma pauperis (“IFP”). (ECF Nos. 2, 5.) 24 I. Motions to Proceed IFP 25 All parties instituting any civil action, suit, or proceeding in a district court of the 26 United States, except an application for writ of habeas corpus, must pay a filing fee of 27 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 28 although the administrative fee does not apply to persons granted leave to proceed IFP. See 1 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 2 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 3 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 4 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). Section 5 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a “certified copy of 6 the trust fund account statement (or institutional equivalent) for . . . the 6-month period 7 immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. 8 King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the 9 Court assesses an initial payment of 20% of (a) the average monthly deposits in the account 10 for the past six months, or (b) the average monthly balance in the account for the past six 11 months, whichever is greater, unless the prisoner has insufficient assets. See 28 U.S.C. 12 § 1915(b)(1)&(4); Bruce v. Samuels, 577 U.S. 82, 84 (2016). Prisoners who proceed IFP 13 must pay any remaining balance in “increments” or “installments,” regardless of whether 14 their action is ultimately dismissed. 28 U.S.C. § 1915(b)(1)&(2); Bruce, 577 U.S. at 84. 15 Here, Plaintiff’s prison certificate shows he had an average monthly balance of 16 $35.17 and average monthly deposits of $28.00 for the six months preceding the filing of 17 this action, and an available balance of $60.60. (ECF No. 4 at 3.) 18 The Court GRANTS Plaintiff’s first motion to proceed IFP (ECF No. 2) and 19 assesses an initial partial filing fee of $7.03. Plaintiff remains obligated to pay the $342.97 20 balance of the filing fee required by 28 U.S.C. § 1914 pursuant to the installment payment 21 provisions of 28 U.S.C. § 1915(b)(1). Because Plaintiff has now been granted leave to 22 proceed IFP, his second motion to proceed IFP (ECF No. 5) is DENIED as moot. 23 II. Screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) 24 A. Standard of Review 25 Because Plaintiff is a prisoner proceeding IFP, his Complaint requires a pre-Answer 26 screening pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these statutes, the Court 27 must sua sponte dismiss a prisoner’s IFP complaint, or any portion of it, that is frivolous, 28 malicious, fails to state a claim, or seeks damages from defendants who are immune. See 1 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. 2 § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 3 U.S.C. § 1915A(b)). “The purpose of § 1915A is to ensure that the targets of frivolous or 4 malicious suits need not bear the expense of responding.” Nordstrom v. Ryan, 762 F.3d 5 903, 920 n.1 (9th Cir. 2014) (internal quote marks omitted). 6 “The standard for determining whether a plaintiff has failed to state a claim upon 7 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 8 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 9 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 10 2012) (noting that § 1915A screening “incorporates the familiar standard applied in the 11 context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”) Rule 12 12(b)(6) requires a complaint to “contain sufficient factual matter, accepted as true, to ‘state 13 a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 14 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Detailed factual 15 allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, 16 supported by mere conclusory statements, do not suffice.” Id. “Determining whether a 17 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 18 reviewing court to draw on its judicial experience and common sense.” Id. The “mere 19 possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me 20 accusation[s]” fall short of meeting this plausibility standard. Id. Title 42 U.S.C. § 1983 21 “creates a private right of action against individuals who, acting under color of state law, 22 violate federal constitutional or statutory rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 23 (9th Cir. 2001). 24 B. Allegations in the Complaint 25 On April 13, 2025, while walking from his housing unit to the medical clinic, 26 Plaintiff stepped in a drainage trench which he did not see or know was there and which 27 had no warning sign. (ECF No. 1 at 6.) Plaintiff fell on his face “causing injuries that 28 required him to go to an outside hospital to receive treatment for the injuries sustained.” 1 Id. Plaintiff claims Defendants Warden Acevedo, Associate Warden Rayes, Facility 2 Captain Martinez and Sergeant Solano knew or should have known that an open trench 3 posed a danger to an elderly inmate, such as himself, who uses a walker to accommodate 4 a disability protected by the Americans with Disabilities Act (“ADA”). Id. at 6–7, 14–16. 5 On August 28, 2025, Plaintiff was walking across the rotunda when Defendant 6 Correctional Officer Viloria, “[t]o intentionally annoy, harass, discriminate, terrorize and 7 intimidate Plaintiff, an elderly, walker-using ADA, African American, based solely on the 8 color of his skin tone, came into the A-3 rotunda with no legitimate cause or emergency 9 situation in progress,” and in violation of prison policies, asked Plaintiff to cuff up, to 10 which he complied without resisting. Id. at 7. Viloria handcuffed Plaintiff with his hands 11 behind his back despite him having a “valid up to date waist chain cuffing chrono.” Id. 12 Plaintiff “made Viloria aware that his legs were giving out and immediately requested 13 emergency medical care.” Id. at 8. As Plaintiff started to fall, Viloria grabbed him, yelled 14 at him to stop resisting even though Plaintiff was not resisting, and intentionally fell on top 15 of him “using unnecessary and excessive force to maliciously cause harm.” Id. Viloria 16 pulled up on Plaintiff’s jacket while pushing his arm in the opposite direction trying to 17 twist him. Id. at 8–10, 17–20. Viloria yelled for restraints and pushed his hand on Plaintiff’s 18 back and left shoulder as Defendant Correctional Officer Galindo placed him in leg 19 restrains while Plaintiff yelled for emergency medical care because he was in pain and did 20 not want Viloria to lift him off the ground. Id. at 19–20, 23. “Not one of [the] officers 21 standing around intervened.” Id. at 10. Plaintiff alleges that Viloria should have known to 22 call for emergency medical aid but, instead, placed him in a sitting position on his walker 23 and pushed him out of the rotunda. Id. at 20-21. Plaintiff suffered “severe injuries to his 24 left shoulder and neck” and “extreme pain and numbness on the left side from his shoulder 25 down to his feet.” Id. at 25, 28. 26 Plaintiff alleges that Defendants Sergeants Eustaquio, Louie, Mansfield, Solano and 27 Segovia arrived and knew he needed medical attention but did not summon medical aid. 28 Id. at 18. Plaintiff alleges that Defendants Correctional Officers Cuevas, Romo, Olmos, 1 Ylv, Flores, Velasco, Romero and Galindo were in the area and failed to intervene or 2 respond to Plaintiff’s request for medical help. Id. at 9-10, 18-19. 3 Specifically, Plaintiff alleges the following: Eustaquio saw Viloria place his hands 4 on Plaintiff’s back while in restraints and heard Plaintiff call for medical aid but failed to 5 summon medical attention. Id. at 21. Segovia saw Viloria use his body weight to drive 6 Plaintiff to the ground while he was in restraints without resisting or being a threat and 7 failed to summon emergency medical aid. Id. Romo “witnessed and heard Plaintiff fall 8 behind him,” and saw Viloria “intentionally pushing Plaintiff’s upper back against the 9 rotunda wall to inflict extreme pain and discomfort.” Id. at 21-22. Mansfield, “in an attempt 10 to cover up the malfeasance . . . invoked a Code of Silence” and stated that that Plaintiff 11 “threw himself to the ground taking Viloria with him.” Id. at 22. Mansfield conceded, 12 however, that he did not see Plaintiff “actively resist,” and knew or should have known he 13 had a duty to summon medical attention and not allow the abuse to continue. Id. at 22. 14 Olmos responded to a personal alarm, witnessed Plaintiff fall while in restraints, and saw 15 Viloria use his right hand on Plaintiff’s right arm and left forearm to apply pressure to 16 Plaintiff’s upper back, where he has metal plates in his back and neck, while Galindo placed 17 him in leg restraints. Id. at 22-23. Ylv witnessed Plaintiff fall and, “to cover up the Green 18 Wall activity,” stated that “Viloria assisted Plaintiff to get him back on his feet,” but failed 19 to summon medical aid and placed chains on his feet. Id. at 23. Solano saw Plaintiff fall 20 when his legs gave way, saw Viloria fall on Plaintiff’s back and neck while in restraints, 21 saw that Plaintiff was not actively resisting or being a threat, saw Viloria deny Plaintiff 22 medical treatment, and knew or should have known Plaintiff needed emergency medical 23 attention but failed to summon medical help. Id. at 23-24. Velasco “contended that waist 24 restraints were handed to defendant Romero, that should have been placed on Plaintiff, an 25 elderly ADA prisoner, but were returned and replaced with leg restraints,” despite Plaintiff 26 having a “valid medical waist chain only cuffing chrono.” Id. at 24. Galindo saw Plaintiff 27 fall and responded by using excessive force in holding him down after his legs went out 28 and Viloria fell on him. Id. Romero saw Plaintiff fall and, without knowing the medical 1 cause for his legs going out, requested leg restraints, observed Viloria pull Plaintiff’s jacket 2 when lifting him off the ground “with no medical training on how to lift an injured 3 individual in the proper manner from the ground,” causing Plaintiff to jerk in pain and call 4 out “don’t touch my left side,” and did not summon medical care. Id. at 24-25. Cuevas 5 observed Plaintiff fall, “explaining how his body weight dropped and he couldn’t help 6 himself from falling. However, there is no mention of defendant Viloria falling onto 7 plaintiff’s back.” Id. at 25. Cuevas “contends he observed defendant Viloria attempt to 8 assist Plaintiff to his feet,” resulting in Plaintiff jerking away due to pain and yelling “don’t 9 touch my left side,” and should have but failed to summon medical care. Id. at 25-26. Louie 10 responded to the alarm and saw Plaintiff on the ground in restraints with Viloria’s hands 11 on his upper left back and shoulder assisting Plaintiff to a sitting position by grabbing his 12 left shoulder, twisting his body and forcing him back to the ground without summoning 13 medical care, refused his duty to provide emergency medical care, and “in an attempt to 14 cover up these Green Wall practices and code of silence,” failed to file a staff malfeasance 15 complaint against Viloria. Id. at 26–27. Nurse Hernandez noted on the incident medical 16 report that Plaintiff had been wrongly handcuffed from behind while having a valid medical 17 waist chain cuffing only chrono and noted he had suffered injuries, but “in an attempt to 18 cover up Green Wall practices and to invoke the code of silence . . . intentionally 19 manufactured a fraudulent medical report of injury pretending to be a TTA examining 20 nurse when plaintiff was never sent to TTA for any treatment . . . [and] contended no 21 injuries were sustained.” Id. at 27. Hernandez also contended that Plaintiff needed no 22 stronger pain medication than what he was already receiving and falsified medical records 23 by falsely stating that Plaintiff reported “custody used force on him and he fell to the ground 24 and hit his whole left side.” Id. at 27–29. 25 Plaintiff alleges that he was seen by a doctor on September 9, 2025, who noted that 26 he had suffered a fall and was reporting “lower back pain that radiates down both legs. His 27 lower extremity symptoms seem to be worse than his back pain.” Id. at 29. Plaintiff alleges 28 that from August 28, 2025, through November 2025, he was provided with no medical 1 treatment for the injuries sustained during the incident and never has been. Id. at 30. 2 Plaintiff alleges Defendant Dr. Blaisdell “declined to see” him and that Dr. Blaisdell denied 3 and delayed x-rays, CAT scans, and other medical tests needed to determine the extent of 4 his injuries. Id. 5 On October 30, 2025, Defendant Lieutenant Reece “bullied Plaintiff at the RVR 6 rules violation hearing,” which was based on a fraudulent disciplinary report, by refusing 7 to review body worn camera footage of the incident in an attempt to cover it up, and found 8 Plaintiff guilty after he walked out because “she had already made her mind up to find 9 [him] guilty.” Id. at 31–32. Plaintiff attaches as exhibits copies of medical reports, 10 disciplinary records and staff complaints containing the Defendants’ statements referenced 11 in the Complaint. ECF No. 1-1 at 1–122. Plaintiff alleges that Eustaquio, Louie, Mansfield, 12 Solano, Segovia, Cuevas, Romo, Olmos, Ylv, Flores, Velasco, Romero, Galindo, 13 Mansfield and Dr. Blaisdell all committed perjury in those documents and participated in 14 “Green Wall practices, code of silence and filed fraudulent reports” to cover up for each 15 other. ECF No. 1 at 33–34. 16 C. Discussion 17 1. Incident on April 13, 2025 18 Plaintiffs cannot state a federal constitutional claim arising solely from allegations 19 of negligence or lack of due care in maintaining a hazardous condition or failing to post a 20 warning sign. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (stating that the standard 21 for failure to protect a prisoner from unsafe conditions “describes a state of mind more 22 blameworthy than negligence” and “more than ordinary lack of due care for the prisoner’s 23 interests or safety”); see Levy v. Department of Corrections of Washington, 2013 WL 24 1855854, at *2 (W.D. Wash. May 1, 2013) (finding no constitutional violation from trip 25 and fall in sprinkler hole on recreation yard); Coleman v. Sweetin, 745 F.3d 756, 764 n.7 26 (5th Cir. 2014) (collecting cases and noting “prisoner slip-and-fall claims almost never 27 serve as the predicate for constitutional violations”). A prison official’s failure to protect 28 an inmate from a dangerous prison condition rises to the level of a constitutional violation 1 when two requirements are met: (1) the alleged failure to maintain safe conditions is 2 sufficiently serious; and (2) the prison official is deliberately indifferent to inmate health 3 or safety. Farmer, 511 U.S. at 834. A prison official must know of and disregard an 4 excessive risk and fail to take reasonable steps to abate the risk. Id. at 837. 5 If Plaintiff wishes to proceed with his 42 U.S.C. § 1983 claim based on his fall as a 6 result of a dangerous condition, he must set forth facts which plausibly allege a Defendant 7 was aware of facts from which they could draw an inference that the trench posed a 8 substantial risk of serious injury to Plaintiff and actually drew such an inference, as 9 opposed to alleging in conclusory fashion that they knew or should have known it posed a 10 danger. Id. at 834–35. Plaintiff must also set forth facts showing he suffered a sufficiently 11 serious injury, as opposed to conclusory allegations that he suffered injuries which 12 “required him to go to an outside hospital.” Id. at 834–38; Iqbal, 556 U.S. at 678 13 (conclusory statements do not satisfy the plausibility standard required to state a claim for 14 relief). 15 2. Incident on August 28, 2025 16 The Eighth Amendment to the U.S. Constitution forbids prison officials from 17 “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). 18 It “places restraints on prison officials, who may not, for example, use excessive physical 19 force against prisoners.” Farmer, 511 U.S. at 832. The Eighth Amendment also imposes a 20 duty on prison officials to “‘take reasonable measures to guarantee the safety of the 21 inmates.’” Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)). Prison officials 22 have a duty to intercede when fellow officers violate the constitutional rights of a prisoner, 23 but liability does not attach where officers do not have a “realistic opportunity” to 24 intercede. Cunningham v. Gates, 229 F.3d 1271, 1289–90 (9th Cir. 2000). 25 Nevertheless, “prison officials are authorized and indeed required to take 26 appropriate measures to maintain prison order and discipline and protect staff and other 27 prisoners.” LeMaire v. Maas, 12 F.3d 1444, 1458 (9th Cir. 1993); Simmons v. G. Arnett, 28 47 F.4th 927, 933 (9th Cir. 2022) (“[P]rison officials should be accorded ‘wide-ranging 1 deference’ when they are exercising their judgment to maintain prison safety,” because 2 “[i]n the specialized context of prison operations, the use of force can be a ‘legitimate 3 means for preventing small disturbances from becoming dangerous to other inmates or the 4 prison personnel.’”) (citations omitted); Whitley, 475 U.S. at 321–22 (prison officials are 5 entitled to deference when a prisoner challenges a use of force). 6 “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments 7 necessarily excludes from constitutional recognition de minimis uses of physical force, 8 provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.’” 9 Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Whitley, 475 U.S. at 327). “When 10 prison officials maliciously and sadistically use force to cause harm, contemporary 11 standards of decency always are violated . . . whether or not significant injury is evident. 12 Otherwise, the Eighth Amendment would permit any physical punishment, no matter how 13 diabolic or inhuman, inflicting less than some arbitrary quantity of injury.” Id. at 9. 14 However, “[n]ot every malevolent touch by a prison guard gives rise to a federal cause of 15 action,” and “[a]n inmate who complains of a ‘push or shove’ that causes no discernible 16 injury almost certainly fails to state a valid excessive force claim.” Wilkins v. Gaddy, 559 17 U.S. 34, 38 (2010) (quoting Hudson, 503 U.S. at 9). The extent of an injury suffered by an 18 inmate is one factor that may determine “whether the use of force could plausibly have 19 been thought necessary” in the situation, “or instead evinced such wantonness with respect 20 to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” 21 Whitley, 475 U.S. at 321; see also Graham v. Connor, 490 U.S. 386, 396 (1989) (“Not 22 every push or shove . . . violates the [federal Constitution].”) 23 Plaintiff alleges he was walking across the rotunda and was nearly at the door when 24 Defendant Viloria, “to intentionally annoy, harass, discriminate, terrorize and intimidate 25 Plaintiff, an elderly, walker-using ADA, African American, based solely on the color of 26 his skin tone, came into the A-3 rotunda with no legitimate cause or emergency situation 27 in progress,” and—in violation of prison policies, practices, regulations and rules—“asked 28 Plaintiff to cuff up, to which he complied without being a threat and not resisting.” (ECF 1 No. 1 at 7.) Those allegations are conclusory with respect to Viloria’s intent, including 2 whether Viloria took those actions because of Plaintiff’s race. See Iqbal, 556 U.S. at 678 3 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 4 statements, do not suffice” to satisfy the plausibility standard required to state a claim for 5 relief.) Attached to and incorporated into the Complaint by reference are exhibits related 6 to staff complaints and disciplinary proceedings containing witness descriptions of the 7 encounter, including Plaintiff’s.1 (ECF No. 1-1 at 2–47.) 8 The allegations in the Complaint are too vague and conclusory to plausibly allege 9 that the use of force Viloria applied to Plaintiff “evinced such wantonness with respect to 10 the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” 11 Whitley, 475 U.S. at 321. Even accepting Plaintiff’s allegation that Viloria and the other 12 officers fabricated their accounts of the incident, and setting aside Plaintiff’s wholly 13 conclusory allegation as to Viloria’s intent in initiating the incident, Plaintiff’s description 14 of Viloria’s action consists of Viloria handcuffing Plaintiff after he refused to yield to 15 Viloria, yelling for him to stop resisting, falling on top of him, and pulling up on his jacket 16 while pushing his arm in the opposite direction, as well as the vague allegations of “injuries 17 to his left shoulder, right shoulder and both sides and back of his neck.” (ECF No. 1 at 8.) 18 19 20 1 In screening the Complaint, the Court considers its attached exhibits. Outdoor Media 21 Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23 (2007) (“[C]ourts must consider the 22 complaint in its entirety, as well as other sources courts ordinarily examine when ruling on 23 Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference . . . [inquiring] whether all of the facts alleged, taken collectively, give rise to 24 a strong inference of scienter, not whether any individual allegation, scrutinized in 25 isolation, meets that standard.”) (internal citation omitted); Watison, 668 F.3d at 1112 (“The standard for determining whether a plaintiff has failed to state a claim upon which 26 relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil 27 Procedure 12(b)(6) standard for failure to state a claim.”); Wilhelm, 680 F.3d at 1121 (noting that § 1915A screening “incorporates the familiar standard applied in the context 28 1 Those allegations do not plausibly allege an Eighth Amendment violation because “[n]ot 2 every push or shove . . . violates the [federal Constitution].” Graham, 490 U.S. at 396; 3 Wilkins, 559 U.S. at 38 (“Not every malevolent touch by a prison guard gives rise to a 4 federal cause of action.”) Plaintiff has not plausibly alleged Viloria’s actions or that of 5 Galindo in placing him in leg restraints “evinced such wantonness with respect to the 6 unjustified infliction of harm as is tantamount to a knowing willingness that it occur,” 7 because the allegations are conclusory and lack specific facts showing Viloria did not 8 believe it was necessary to restrain Plaintiff, what actions Plaintiff took in response, why 9 Plaintiff believed emergency medical staff needed to be summoned immediately, why he 10 believed other officers needed to intervene and whether they had time to prevent the alleged 11 use of excessive force, and the extent and severity of his injuries. See Whitley, 475 U.S. at 12 321 (the extent of injury is a factor that may determine “whether the use of force could 13 plausibly have been thought necessary”); Iqbal, 556 U.S. at 678 (stating that “mere 14 possibility of misconduct” falls short of meeting the plausibility standard). 15 The allegations against Defendants Eustaquio, Cuevas, Romo, Olmos, Ylv, Flores, 16 Velasco, Romero, Segovia, Mansfield, Solano, Galindo and Louie for failing to intervene 17 and failing to summon emergency medical staff, fail to state a claim because Plaintiff has 18 not plausibly alleged an Eighth Amendment violation arising from his encounter with 19 Viloria. If Plaintiff wishes to proceed with excessive use of force or failure to protect claims 20 against these Defendants, he must set forth non-conclusory factual allegations which 21 plausibly allege their actions or failure to act “evinced such wantonness with respect to the 22 unjustified infliction of harm as is tantamount to a knowing willingness that it occur,” 23 Whitley, 475 U.S. at 321, and plausibly showing that they were not taking “appropriate 24 measures to maintain prison order and discipline and protect staff and other prisoners.” 25 LeMaire, 12 F.3d at 1458. 26 Plaintiff next alleges that he was denied medical care because Defendant Nurse 27 Hernandez noted on the incident medical report he had suffered injuries, but “in an attempt 28 to cover up Green Wall practices and to invoke the code of silence . . . manufactured a 1 fraudulent medical report of injury pretending to be a TTA examining nurse [and] 2 contended no injuries were sustained,” contended that Plaintiff needed no stronger pain 3 medication than what he was already receiving, and falsely stated that Plaintiff reported 4 that “custody used force on him and he fell to the ground and hit his whole left side.” (ECF 5 No. 1 at 27-29.) Plaintiff alleges that Defendant Dr. Blaisdell declined to see him, and 6 denied and delayed x-rays, CAT scans, and other necessary medical tests needed to 7 determine the extent of his injuries. Id. at 30. 8 The Eighth Amendment’s prohibition on the infliction of cruel and unusual 9 punishment creates an “obligation to provide medical care for those whom it is punishing 10 by incarceration.” Estelle v. Gamble, 429 U.S. 97, 101-03 (1976). A prison official can be 11 held liable only if he “knows of and disregards an excessive risk to inmate health or safety;” 12 he “must both be aware of facts from which the inference could be drawn that a substantial 13 risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837; 14 Wilhelm, 680 F.3d at 1122 (holding that a prisoner plausibly alleges an Eighth Amendment 15 violation where a failure to treat a serious medical need “could result in further significant 16 injury or the unnecessary and wanton infliction of pain” and “the defendant’s response to 17 the need was deliberately indifferent.”) “[I]ndicia of a ‘serious’ medical need include (1) 18 the existence of an injury that a reasonable doctor would find important and worthy of 19 comment or treatment, (2) the presence of a medical condition that significantly affects an 20 individual’s daily activities, and (3) the existence of chronic or substantial pain.” Doty v. 21 County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994). 22 “Deliberate indifference ‘may appear when prison officials deny, delay or 23 intentionally interfere with medical treatment.’” Colwell v. Bannister, 763 F.3d 1060, 1066 24 (9th Cir. 2014) (quoting Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988)). 25 Deliberate indifference can also be shown where the chosen course of medical treatment 26 was “medically unacceptable under the circumstances” and chosen “in conscious disregard 27 of an excessive risk to the prisoner’s health.” Toguchi v. Chung, 391 F.3d 1051, 1058 (9th 28 Cir. 2004). However, allegations of inadequate medical treatment, medical malpractice, or 1 even gross negligence by themselves do not rise to the level of an Eighth Amendment 2 violation. See Farmer, 511 U.S. at 835 (“[N]egligen(ce) in diagnosing or treating a medical 3 condition” does not amount to deliberate indifference) (quoting Estelle, 429 U.S. at 106 4 (an inadvertent failure to provide medical care, negligence or malpractice and differences 5 of opinion over what medical treatment is proper, do not state an Eighth Amendment 6 claim)). 7 Although Plaintiff sets forth specific facts in the Complaint describing his long- 8 standing medical conditions, including that since a recent fall he has reported lower back 9 pain radiating down his legs, (ECF No. 1 at 29), the allegations that Hernandez pretended 10 to be a TTA nurse and filed a false medical report and that Defendant Dr. Blaisdell denied 11 him necessary medical care are too conclusory to plausibly allege anything more than a 12 disagreement over the type of medical care Plaintiff thought necessary, particularly in light 13 of Plaintiff’s non-specific allegations of what injuries he suffered during the incident. See 14 Colwell, 763 F.3d at 1068 (“A difference of opinion between a physician and the 15 prisoner—or between medical professionals—concerning what medical care is appropriate 16 does not amount to deliberate indifference.”); Toguchi, 391 F.3d at 1058 (a disagreement 17 over the necessity or extent of medical treatment does not show deliberate indifference); 18 Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970) (“[A] difference of opinion between 19 a prisoner patient and prison medical authorities as to what treatment is proper and 20 necessary does not give rise to a claim under [§ 1983].”) 21 If Plaintiff wishes to proceed with an Eighth Amendment claim for denial of medical 22 care, he must set forth specific factual allegations which plausibly suggest a Defendant 23 knew of and disregarded an excessive risk to his health by showing they were “aware of 24 facts from which the inference could be drawn” that he faced “a substantial risk of serious 25 harm” by the treatment they provided, and actually drew that inference when allegedly 26 denying him medical care, including what care he needed but was refused. Farmer, 511 27 U.S. at 837; Iqbal, 556 U.S. at 678 (the “mere possibility of misconduct” falls short of the 28 plausibility standard). 1 Finally, Plaintiff alleges Defendant Reece “bullied Plaintiff at the RVR rules 2 violation report hearing” which was held as a result of Viloria’s allegedly fraudulent 3 disciplinary report, by refusing to review body worn camera footage of the incident in an 4 attempt to cover it up. Id. at 31–32. A prisoner is entitled to procedural protections when 5 charged with a disciplinary violation, but only “when the disciplinary action implicates a 6 protected liberty interest in some ‘unexpected matter’ or imposes an ‘atypical and 7 significant hardship on the inmate in relation to the ordinary incidents of prison life.’” 8 Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003) (quoting Sandin v. Conner, 515 9 U.S. 472, 484 (1995)). “Such protections include the rights to call witnesses, to present 10 documentary evidence and to have a written statement by the factfinder as to the evidence 11 relied upon and the reasons for the disciplinary action taken.” Id. at 1077–78. A prisoner 12 must show he was deprived of a liberty interest and that the procedures used were not 13 constitutionally sufficient. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 459–60 (1989). 14 Plaintiff has not plausibly alleged he was deprived of a protected liberty interest 15 because he has not provided any factual allegations describing the disciplinary proceedings 16 or its consequences, other than that he was found guilty and walked out of the hearing after 17 the hearing officer refused his request to review video footage, and the exhibits do not 18 include sufficient information. Sandin, 515 U.S. at 486–87. Plaintiff cannot state a due 19 process claim arising solely from an allegedly false disciplinary charge because a prisoner 20 does not have a constitutionally guaranteed right to be free of a disciplinary charge based 21 on false allegations. Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (citing Freeman 22 v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)) (allegation of false evidence planted by prison 23 guard does not state a constitutional claim where due process protections are provided); 24 Murschel v. Paramo, 2018 WL 539159, at *5 (S.D. Cal. 2018) (allegations that an RVR 25 included false information does not state a claim under section 1983); see Hanrahan v. 26 Lane, 747 F.2d 1137, 1140–41 (7th Cir. 1984) (noting that as long as a prisoner is afforded 27 procedural due process in a hearing, allegations of false or fabricated charges in a 28 disciplinary proceeding fail to state a claim under § 1983). 1 For all the foregoing reasons, Plaintiff’s Complaint is dismissed without prejudice 2 pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) for failure to state a claim. 3 D. Leave to Amend 4 In light of Plaintiff’s pro se status, the Court grants leave to amend. See Rosati v. 5 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro 6 se complaint without leave to amend unless it is absolutely clear that the deficiencies of 7 the complaint could not be cured by amendment.”) (internal quote marks omitted). 8 III. Conclusion and Orders 9 Good cause appearing, the Court: 10 1. GRANTS Plaintiff’s first Motion to Proceed IFP (ECF No. 2) and DENIES 11 as moot his second Motion to Proceed IFP (ECF No. 5). 12 2. DIRECTS the Secretary of the CDCR, or his designee, to collect from 13 Plaintiff’s prison trust account the $7.03 initial partial filing fee and collect the $342.97 14 balance of the filing fee by collecting monthly payments from Plaintiff’s account in an 15 amount equal to twenty percent (20%) of the preceding month’s income and forwarding 16 those payments to the Clerk of the Court each time the amount in the account exceeds $10 17 pursuant to 28 U.S.C. § 1915(b)(2). 18 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Jeff 19 Macomber, Secretary, California Department of Corrections and Rehabilitation, P.O. Box 20 942883, Sacramento, California 94283-0001. 21 4. DISMISSES all claims against all Defendants in the Complaint without 22 prejudice and with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). 23 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 24 which to file a First Amended Complaint which cures the deficiencies of pleading noted in 25 this Order with respect to any or all other Defendants. Plaintiff’s First Amended Complaint 26 must be complete by itself without reference to his original Complaint. Defendants not 27 named and any claims not re-alleged in the First Amended Complaint will be considered 28 waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 1 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.’’); 2 || Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed 3 || with leave to amend which are not re-alleged in an amended pleading may be “considered 4 || waived if not repled.”) If Plaintiff fails to amend, the Court will dismiss this action for 5 || failure to state a claim and failure to prosecute. See Lira v. Herrera, 427 F.3d 1164, 1169 6 ||(9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his 7 || complaint, a district court may convert the dismissal of the complaint into dismissal of the 8 |/ entire action.) 9 IT IS SO ORDERED. 10 11 12 Dated: March 26, 2026 BME: ie Z. Maa 13 Hon. William Q. Hayes 14 United States District Court 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16