(PC) Craver v. Tran

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ANDRE RAMON CRAVER, No. 2:20-cv-1714 DB P

12 Plaintiff,

13 v. ORDER

14 T. TRAN,

15 Defendant.

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17 Plaintiff is a state prisoner proceeding pro se in this civil rights action pursuant to 42

18 U.S.C. § 1983. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has requested leave to

19 proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this

20 court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

21 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C.

22 § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.

23 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C.

24 §§ 1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

25 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

26 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

27 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

28 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

1 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time

2 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C.

3 § 1915(b)(2).

4 I. Screening Requirement

5 The in forma pauperis statute provides, “Notwithstanding any filing fee, or any portion

6 thereof, that may have been paid, the court shall dismiss the case at any time if the court

7 determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

8 granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

9 II. Pleading Standard

10 Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or

11 immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp.

12 Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of

13 substantive rights, but merely provides a method for vindicating federal rights conferred

14 elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

15 To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a

16 right secured by the Constitution or laws of the United States was violated and (2) that the alleged

17 violation was committed by a person acting under the color of state law. See West v. Atkins, 487

18 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987).

19 A complaint must contain “a short and plain statement of the claim showing that the

20 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

21 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

22 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

23 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual

24 matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial

25 plausibility demands more than the mere possibility that a defendant committed misconduct and,

26 while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

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1 III. Plaintiff’s Allegations

2 Plaintiff brings an Eighth Amendment claim for medical indifference against T. Tran, a

3 psychiatric technician at Mule Creek State Prison (“MCSP”) in Ione, California. Plaintiff seeks

4 damages.

5 Plaintiff’s allegations may be fairly summarized as follows:

6 Plaintiff suffers from a type of cancer called multiple myeloma, which causes pain

7 throughout his body and for which he was prescribed Tylenol. On March 8, 2020, at

8 approximately 11:30 a.m., plaintiff approached the medical window at MCSP to obtain his pain

9 medication. Tran was at the window that morning and refused plaintiff his medication, stating,

10 “You’re not getting any meds, this is noon meds, you should have come this morning at 6:00

11 a.m.” Plaintiff replied that it was still morning at 11:30 a.m. and that he needed the medication for

12 his pain. Tran replied, “I don’t care! You’re not getting nothing, get away from my window.”

13 Plaintiff told Tran that he needs the medicine because he has cancer with pain all over his body.

14 Tran responded, “I don’t care about your pain, I’m doing noon meds, get away from my

15 window!” Seeing that he was unable to get his a.m. medication, plaintiff asked Tran for his p.m.

16 medication instead so that he could get some relief. Tran refused to give the medicine, saying,

17 “You don’t have nothing coming, get away from my window!” Plaintiff did not receive any pain

18 medication from Tran that morning.

19 Plaintiff informed Tran that he would write an inmate grievance concerning the denial of

20 pain medication. Tran, in turn, drafted a CDCR 115 Rules Violation Report (“RVR’) in which she

21 fabricated information in retaliation for the inmate grievance. No hearing has yet been held on the

22 RVR.

23 IV. Discussion

24 A. Eighth Amendment Medical Indifference

25 Where a prisoner’s Eighth Amendment claims arise in the context of medical care, the

26 prisoner must allege and prove “acts or omissions sufficiently harmful to evidence deliberate

27 indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). An Eighth

28 Amendment medical claim has two elements: “the seriousness of the prisoner’s medical need and

1 the nature of the defendant’s response to that need.” McGuckin v. Smith, 974 F.2d 1050, 1059

2 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th

3 Cir. 1997) (en banc).

4 A serious medical need exists if the failure to treat the condition could result in further

5 significant injury or the unnecessary and wanton infliction of pain. Jett v. Penner, 439 F.3d 1091,

6 1096 (9th Cir. 2006). To act with deliberate indifference, a prison official must both be aware of

7 facts from which the inference could be drawn that a substantial risk of serious harm exists, and

8 he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a defendant

9 is liable if he knows that plaintiff faces “a substantial risk of serious harm and disregards that risk

10 by failing to take reasonable measures to abate it.” Id. at 847. “It is enough that the official acted

11 or failed to act despite his knowledge of a substantial risk of harm.” Id. at 842.

12 In applying this standard, the Ninth Circuit has held that before it can be said that a

13 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be

14 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause

15 of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle,

16 429 U.S. at 105–06). “[A] complaint that a physician has been negligent in diagnosing or treating

17 a medical condition does not state a valid claim of medical mistreatment under the Eighth

18 Amendment. Medical malpractice does not become a constitutional violation merely because the

19 victim is a prisoner.” Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d

20 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate

21 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.

22 1990). Additionally, a prisoner’s mere disagreement with diagnosis or treatment does not support

23 a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

24 Delays in providing medical care may manifest deliberate indifference. Estelle, 429 U.S.

25 at 104-05. To establish a claim of deliberate indifference arising from a delay in providing care, a

26 plaintiff must show that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th

27 Cir. 1994); McGuckin, 974 F.2d at 1059; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir.

28 1990); Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In this

1 regard, “[a] prisoner need not show his harm was substantial; however, such would provide

2 additional support for the inmate’s claim that the defendant was deliberately indifferent to his

3 needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also McGuckin, 974 F.2d at

4 1060. In addition, a physician need not fail to treat an inmate altogether in order to violate that

5 inmate’s Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir.

6 1989) (per curiam). A failure to competently treat a serious medical condition, even if some

7 treatment is prescribed, may constitute deliberate indifference in a particular case. Id.

8 Plaintiff accuses Tran of refusing to issue him pain medication despite his obvious need

9 for it. The circumstances of the denial, however, were that plaintiff was too late for the a.m.

10 medication release and too early for the p.m. medication release. There is no deliberate

11 indifference on these facts. Furthermore, plaintiff’s contention that Tran’s behavior fell below a

12 particular standard of care is insufficient to impose liability here because negligence, without

13 more, cannot support an Eighth Amendment claim.

14 B. Falsified RVR and First Amendment Retaliation

15 The filing of a false report by a prison official against a prisoner is not a per se violation of

16 the prisoner’s constitutional rights. See Muhammad v. Rubia, 2010 WL 1260425, at *3 (N.D.

17 Cal., Mar. 29, 2010), aff'd, 453 Fed. App'x 751 (9th Cir. 2011) (“[A] prisoner has no

18 constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which

19 may result in the deprivation of a protected liberty interest. As long as a prisoner is afforded

20 procedural due process in the disciplinary hearing, allegations of a fabricated charge fail to state a

21 claim under § 1983.”) (citations omitted); Harper v. Costa, 2009 WL 1684599, at *2-3 (E.D. Cal.,

22 June 16, 2009), aff'd, 393 Fed. Appx. 488 (9th Cir. 2010) (“Although the Ninth Circuit has not

23 directly addressed this issue in a published opinion, district courts throughout California ... have

24 determined that a prisoner’s allegation that prison officials issued a false disciplinary charge

25 against him fails to state a cognizable claim for relief under § 1983.”).

26 There are, however, two ways that allegations that an inmate has been subjected to a false

27 disciplinary report can state a cognizable civil rights claim: (1) when the prisoner alleges that the

28 false disciplinary report was filed in retaliation for his exercise of a constitutional right and (2)

1 when the prisoner alleges that he was not afforded procedural due process in a proceeding

2 concerning the false report. See Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (“[T]his court

3 has reaffirmed that prisoners may still base retaliation claims on harms that would not raise due

4 process concerns.”); Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986) (holding that the filing

5 of a false disciplinary charge against a prisoner is not actionable under § 1983 if prison officials

6 provide the prisoner with procedural due process protections); Hanrahan v. Lane, 747 F.2d 1137,

7 1140-41 (7th Cir. 1984) (“[A]n allegation that a prison guard planted false evidence which

8 implicates an inmate in a disciplinary infraction fails to state a claim for which relief can be

9 granted where the procedural due process protections as required in Wolff v. McDonnell are

10 provided.”).

11 The fundamentals of a retaliation claim are easily summarized: “Within the prison

12 context, a viable claim of First Amendment retaliation entails five basic elements: (1) An

13 assertion that a state actor took some adverse action against an inmate (2) because of (3) that

14 prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First

15 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”

16 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (citing Resnick v. Hayes, 213 F.3d

17 443, 449 (9th Cir. 2000)). It is the plaintiff's burden to prove each of these elements. Pratt v.

18 Rowland, 65 F.3d 802, 806 (9th Cir. 1995).

19 Here, plaintiff has sufficiently alleged a cognizable retaliation claim against Tran for her

20 filing of a falsified RVR in retaliation for plaintiff’s filing of an inmate grievance. Since plaintiff

21 has not yet had a hearing on the RVR and there does not appear to be any other action taken on it,

22 plaintiff does not state a due process claim on the falsified RVR.

23 V. Conclusion

24 Plaintiff’s complaint states a First Amendment retaliation claim against Tran. No other

25 claims are cognizable as plead.

26 The Court will grant Plaintiff an opportunity to file an amended complaint. Noll v.

27 Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). If plaintiff does not wish to amend, he may

28 instead file a notice of voluntary dismissal, and the action then will be terminated by operation of

1 law. Fed. R. Civ. P. 41(a)(1)(A)(i). Alternatively, plaintiff may forego amendment and notify the

2 Court that he wishes to stand on his complaint. See Edwards v. Marin Park, Inc., 356 F.3d 1058,

3 1064-65 (9th Cir. 2004) (plaintiff may elect to forego amendment). If the last option is chosen,

4 the undersigned will issue findings and recommendations to dismiss the complaint with leave to

5 amend, plaintiff will have an opportunity to object, and the matter will be decided by a District

6 Judge.

7 If plaintiff opts to amend, he must demonstrate that the alleged acts resulted in a

8 deprivation of his constitutional rights. Iqbal, 556 U.S. at 677-78. Plaintiff must set forth

9 “sufficient factual matter . . . to ‘state a claim that is plausible on its face.’” Id. at 678 (quoting

10 Twombly, 550 U.S. at 555 (2007)). Plaintiff should note that although he has been granted the

11 opportunity to amend his complaint, it is not for the purposes of adding new and unrelated claims.

12 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff should carefully review this

13 screening order and focus his efforts on curing the deficiencies set forth above.

14 Finally, plaintiff is advised that Local Rule 220 requires that an amended complaint be

15 complete in itself without reference to any prior pleading. As a general rule, an amended

16 complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

17 Once an amended complaint is filed, the original complaint no longer serves a function in the

18 case. Id. Therefore, in an amended complaint, as in an original complaint, each claim and the

19 involvement of each defendant must be sufficiently alleged. The amended complaint should be

20 clearly titled, in bold font, “First Amended Complaint,” reference the appropriate case number,

21 and be an original signed under penalty of perjury. Plaintiff’s amended complaint should be brief.

22 Fed. R. Civ. P. 8(a). Although accepted as true, the “[f]actual allegations must be [sufficient] to

23 raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations

24 omitted).

25 Accordingly, it is HEREBY ORDERED that:

26 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

27 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

28 Plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. §

1 | 1915(b)1). All fees shall be collected and paid in accordance with this court’s order to the

2 | Director of the California Department of Corrections and Rehabilitation filed concurrently

3 | herewith.

4 3. The Clerk’s Office shall send Plaintiff a blank civil rights complaint form;

5 4. Within thirty days from the date of service of this order, plaintiff must file either a

6 | first amended complaint curing the deficiencies identified by the Court in this order, a notice of

7 | voluntary dismissal, or a notice of election to stand on the complaint; and

8 5. If plaintiff fails to file a first amended complaint or notice of voluntary dismissal,

9 | the Court will recommend the action be dismissed, with prejudice, for failure to obey a court

10 | order and failure to state a claim.

11 | Dated: January 8, 2021

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14 ORAH BARNES

UNITED STATES MAGISTRATE JUDGE

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16 | Lizz;

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