Flournoy v. Acevedo et al

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