Tarrance v. Johnson et al

Filing 6

SCREENING ORDER Dismissing 1 Complaint With Leave to Amend, signed by Magistrate Judge Barbara A. McAuliffe on 10/2/15. Amended Complaint Due Within Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:15-cv-00858---BAM

DONALD LEE TARRANCE,

SCREENING ORDER DISMISSING
COMPLAINT WITH LEAVE TO AMEND

Plaintiff,
v.

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THIRTY-DAY DEADLINE
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TARA JOHNSON; KIM CRADDOCK;
and SAMUEL LEACH,
Defendants.

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INTRODUCTION

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Plaintiff Donald Lee Tarrance (“Plaintiff”), proceeding pro se and in forma pauperis, filed

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the instant civil rights complaint alleging violations pursuant to 42 U.S.C. § 1983. Plaintiff’s

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complaint, filed on June 8, 2015, is currently before the Court for screening.

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A. Screening Requirement

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Pursuant to 28 U.S.C. § 1915(e)(2), the Court must dismiss a case if at any time the Court

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determines that the complaint fails to state a claim upon which relief may be granted. In

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determining whether a complaint fails to state a claim, the Court applies the same pleading

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standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P.

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8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of
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a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,

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556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

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“[A] complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . .

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‘stops short of the line between possibility and plausibility of entitlement to relief.’” Iqbal, 556

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U.S. at 678 (quoting Twombly, 550 U.S. at 557). Further, although a court must accept as true all

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factual allegations contained in a complaint, a court need not accept a plaintiff’s legal conclusions

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as true. Iqbal, 556 U.S. at 678.
Plaintiff’s Allegations

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B.

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Plaintiff brings suit against Deputy Probation Officer Tara Johnson, Assistant Chief

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Probation Officer Kim Craddock and Chief Probation Officer Samuel Leach, all of the Calaveras

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Probation Department.

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Plaintiff alleges: On December 22, 2014, Plaintiff was released from a state custody

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prison hospital in Stockton, California. He was placed on post-release community supervision.

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He reported to the Calaveras Probation Department in San Andreas, California, and to probation

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officer Tara Johnson. Ms. Johnson forced Plaintiff to wear an ankle monitor, which was attached

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to his ankle so tight that his foot would become numb and his leg would swell.

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Plaintiff suffers from heart disease (A-FIB) and takes blood thinners. He also suffers from

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chronic arterial heart fibulation and from chronic back pain. He has five herniated disks and two

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crushed disks in his lower back.

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Plaintiff was released from the prison hospital after lying in a hospital bed for over a year.

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Plaintiff could barely walk, and was given a walker and a cane upon his release from the prison

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hospital. Plaintiff alleges that Defendants forced him to hitchhike 20 miles to attend drug classes.

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Plaintiff’s motorcycle broke down and for over two months he had to hitchhike from Railroad

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Flat to San Andreas and then back to Railroad Flat. This put undue stress on his heart and severe

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pain on his lower back. After two months of being forced to hitchhike back and forth to classes,
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Defendants decided to provide Plaintiff with a ride to and from classes. Plaintiff contends that he

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still must suffer extreme pain in his back by being forced to ride to class for an hour and then

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back home for another hour. Plaintiff also must attend classes on Wednesdays for approximately

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4½ hours and on Friday for approximately 2½ hours. Plaintiff claims that Defendants do not

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seem to understand that he paroled from a hospital bed and his heart and back cannot stand the

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stress and strain of sitting for over one hour.

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Plaintiff has given Defendants a copy of his medical files, but Defendants reportedly

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refuse to believe that Plaintiff is totally disabled. Plaintiff asserts that he is 60 years old, totally

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disabled, and walks with the use of walker or cane. Defendants have told Plaintiff that if he

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misses 3 classes, then he will go to jail for 180 days.

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Plaintiff contends that he is suffering from cruel and unusual punishment by being forced

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to attend classes twice a week. Defendants reportedly do not take into account that he is disabled.

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By forcing him to attend classes, he is suffering from traumatic stress disorder.

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Plaintiff further alleges that Defendants refuse to allow him to take his medication

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(medical marijuana) and are therefore guilty of medical negligence. Plaintiff reports that he was

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taking 60 mg of morphine a day while in prison, but kicked his morphine habit when released

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from the prison hospital. The morphine made him sick to his stomach, so he smoked medical

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marijuana. Defendants told Plaintiff that he was not allowed to get a medical marijuana card and

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would rather he take morphine. Defendants reportedly claimed that the probation department was

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federally funded and the Federal government does not recognize medical marijuana. Plaintiff

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contends that if he does not stop smoking medical marijuana, Defendants will not remove his

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ankle monitor and send him to jail.

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Plaintiff went to the doctor and was given marijuana pills, but they do not work the same

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as medical marijuana. Defendants reportedly stated that it was okay to take high-powered drugs,

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such as cocaine, oxycodone, and morphine, but not medical marijuana. Plaintiff alleges that

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Defendants are inflicting emotional distress and are guilty of a civil conspiracy. Plaintiff believes

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that Defendants are trying to kill him by forcing him to attend classes. Defendants reportedly

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have failed to protect his health and safety by denying him medical marijuana and by forcing him
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to attend classes, wear an ankle monitor and hitchhike to classes. Plaintiff contends that he

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should not have to report to probation or classes and that probation should come to him.

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As relief, Plaintiff seeks $250,000 in monetary damages, along with termination of

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probation, removal of the ankle brace and a restraining order against Defendant Tara Johnson.

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(Doc. 1 at 3.)

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DISCUSSION

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A. Probation Conditions

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Plaintiff appears to bring a constitutional challenge to the imposition and enforcement of

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three probation conditions: (1) ankle monitoring; (2) attendance at classes; and (3) a prohibition

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against the use of medical marijuana. Ordinarily, a challenge to such conditions is not considered

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an attack on an underlying conviction or sentence and is properly brought in a section 1983

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action. See, e.g., Thornton v. Brown, 757 F.3d 834, 838, 841 (9th Cir. 2013) (attack on parole

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conditions). However, in this instance, Plaintiff seeks termination of his probation. Such a

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challenge to the fact or duration of his “custody” must be done through a habeas proceeding. Id.

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at 841.

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To the extent Plaintiff is solely challenging the constitutionality of his probation

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conditions, it is unclear whether the conditions at issue were imposed by the state court at

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sentencing or whether they were independently imposed by Defendants. Although the Federal

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Rules adopt a flexible pleading policy, a complaint must give fair notice and state the elements of

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the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir.

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1984). While detailed allegations are not required, a plaintiff must set forth “the grounds of his

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entitlement to relief.” Twombly, 550 U.S. at 555 (internal quotations and citations omitted).

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Plaintiff has stated the facts underlying his complaint, but it is not clear that he has established a

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violation of federal law that is properly before this Court. Plaintiff will be given leave to cure this

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deficiency.

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B. Deliberate Indifference to Medical Needs

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Insofar as Plaintiff is suing probation officers for deliberate indifference to serious

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medical needs, he has failed to state a cognizable claim. The Court applies the same standards to
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a medical claim by a probationer as to a prisoner’s claim under the Eighth Amendment. See

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Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998) (court applies same standard to claim arising

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under Fourteenth Amendment as to prisoners’ claims under the Eighth Amendment); Farmer v.

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Dir. of Ariz. Adult Prob. Dep’t, No. CV 09-2543-PHX-RCB (MEA), 2010 WL 148221, *4 (D.

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Ariz. Jan. 8, 2010) (applying Eighth Amendment standard to claim against probation officer for

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deliberate indifference to serious medical needs). To maintain a medical claim, a plaintiff must

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show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096

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(9th Cir.2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251

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(1976)). The two part test for deliberate indifference requires the plaintiff to show (1) “a ‘serious

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medical need’ by demonstrating that failure to treat a prisoner’s condition could result in further

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significant injury or the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s

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response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096; Wilhelm v. Rotman, 680

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F.3d 1113, 1122 (9th Cir.2012).

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“Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060

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(9th Cir. 2004). The prison official must be aware of facts from which he could make an inference

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that “a substantial risk of serious harm exists” and he must make the inference. Farmer v.

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Brennan, 511 U.S. 825, 837 (1994).

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Ankle Monitor

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Plaintiff alleges that Defendant Johnson attached Plaintiff’s ankle monitor so tight that his

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foot would become numb and his leg would swell. However,

there

is

no

indication

that

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Defendant Johnson knew the ankle monitor was too tight, that placement of Plaintiff’s ankle

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monitor would result in injury or pain, that Plaintiff reported any such issue to Defendant Johnson

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or that Plaintiff otherwise requested that any of the defendants make adjustments to his ankle

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monitor.

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Transportation and Classes

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Plaintiff claims that Defendants forced him to hitchhike. This is not sufficient to state a

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claim.

There is nothing in the factual allegations demonstrating that any defendant was

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responsible for the breakdown of Plaintiff’s motorcycle or that they were aware no other
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transportation options were available. Further, Plaintiff contends that defendants subsequently

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made rides available to him.

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Plaintiff also alleges that defendants collectively forced him to ride in a car for an hour

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and attend classes more than an hour in length, both of which put a strain on his back because he

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cannot sit for more than one hour.

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indifference claim. First, Plaintiff has not linked any particular defendant to this claim. Second,

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Plaintiff has not demonstrated that any defendant knew of a serious risk of harm to Plaintiff from

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attending classes or riding in a car. Third, there is no indication that Plaintiff is forced to sit for

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more than one hour in class. In other words, there are insufficient facts to suggest that Plaintiff

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This allegation is not sufficient to state a deliberate

cannot stand for brief periods in class or that he is prevented from taking breaks.

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Medical Marijuana

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Plaintiff cannot state a deliberate indifference claim regarding the prohibition of medical

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marijuana. At the most basic level, Plaintiff has not established that other pain medications or

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therapies are unavailable to him.

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C.

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“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so

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requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006)

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(quoting former Fed. R. Civ. P. 15(a)).

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opportunity to amend his claims to cure the identified deficiencies.

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Leave to Amend

As Plaintiff is proceeding pro se, he will be given an

CONCLUSION AND ORDER

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Plaintiff’s complaint fails to state a cognizable claim. As noted above, the Court will

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provide Plaintiff with the opportunity to file an amended complaint to cure the identified

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deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff may not change the

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nature of this suit by adding new, unrelated claims in his amended complaint. George v. Smith,

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507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints).

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In the amended complaint, Plaintiff shall state as briefly as possible the facts of the case,

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describing how each defendant is involved. For each claim, Plaintiff shall clearly and succinctly

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state the facts identifying the actions or omissions by each individual defendant that led to a
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knowing violation of Plaintiff’s federal rights.

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Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what

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the named defendant did that led to the deprivation of Plaintiffs’ constitutional rights, Iqbal, 556

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U.S. at 678-79, 129 S.Ct. at 1948-49. Although accepted as true, the “[f]actual allegations must

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be [sufficient] to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555

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(citations omitted). Plaintiff should omit any case law or legal analysis and argument.

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Finally, Plaintiff is advised that an amended complaint supersedes the original complaint.

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Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). Therefore, Plaintiff’s

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amended complaint must be “complete in itself without reference to the prior or superseded

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pleading.” Local Rule 220.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff’s complaint is dismissed for failure to state a cognizable claim;

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2.

Within thirty (30) days from the date of service of this order, Plaintiff shall file a

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first amended complaint;
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If Plaintiff fails to file a first amended complaint in compliance with this

order, this action will be dismissed for failure to obey a court order.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 2, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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