The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FIRST SCREENING ORDER ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM, WITH LEAVE TO AMEND (Doc. 1.) FIRST AMENDED COMPLAINT THIRTY DAY DEADLINE TO FILE
I. RELEVANT PROCEDURAL HISTORY
Plaintiff Joseph Gilbert ("Plaintiff") is a state prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"), and is proceeding in forma pauperis with counsel in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on November 20, 2009. (Doc. 1.) Plaintiff's complaint is now before the court for screening.
II. SCREENING REQUIREMENT
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous, malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). 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." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. While factual allegations are accepted as true, legal conclusions are not. Id. at 1949.
III. SUMMARY OF COMPLAINT
Plaintiff, who is currently incarcerated at San Quentin State Prison in Marin County, California, brings this action for violation of his rights to adequate medical care and deliberate indifference to his medical needs. The events at issue occurred in 2007, 2008, and 2009, while Plaintiff was incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California. Plaintiff names as defendants James A. Yates (Warden, PVSP), William F. Alvarez, Ph.D. (Health Care Manager, PVSP), and John G. Diep, M.D. (Physician, PVSP) in their individual and official capacities. All named defendants were employed by the CDCR. Plaintiff also names Does 1-20.
Plaintiff alleges as follows: Plaintiff has a history of asthma and related pulmonary conditions. He also has been diagnosed with hepatitis C. When he was incarcerated at PVSP, Plaintiff informed the examining medical staff that he had a history of asthma and had hepatitis C. This information was not noted on his medical history form. In approximately 2007, CDCR instituted a policy whereby inmates with increased susceptibility to valley fever would not be housed at PVSP, and such inmates already housed at PVSP would be transferred to other prisons. Plaintiff claims he has at least one of the conditions listed as criteria for transfer to another prison outside the valley fever pandemic area. In November 2005, Plaintiff began to experience a heavy sensation in his chest, a productive cough, chest pain and other symptoms, which persisted on and off over the next two years. On several occasions, Plaintiff requested examination for valley fever. In November 2007, Plaintiff was tested for valley fever. The test was positive, but Plaintiff was not transferred. In March 2008, when Plaintiff complained of the same problems, PVSP medical staff erroneously noted that Plaintiff's test was negative. In 2007 and 2008, Plaintiff filled out a number of health care requests to address problems consistent with valley fever. Plaintiff claims that defendants and other PVSP medical staff noted he had asthma and gave him medication for that disease, rather than treat him for valley fever. In July 2008, Plaintiff reported to PVSP medical staff that he was still having adverse respiratory and other problems. An unknown medical staff member reported that Plaintiff did not meet qualification for transfer and discussed the administrative appeal process (a "602" process) with him. On August 4, 2008, Plaintiff was sent to an outside medical facility for a pulmonary function test. The test showed moderate restriction and asthma with possible chronic obstructive pulmonary disease. During a follow-up visit to the PVSP clinic, medical staff told Plaintiff that he would be evaluated for transfer out of PVSP. He was again told that he did not qualify for transfer. On or about, May 29, 2008, Plaintiff filed a 602 to appeal his transfer eligibility. On July 29, 2009, Defendant Diep determined that Plaintiff did not meet the criteria for transfer, opining that Plaintiff had stable asthma. When Plaintiff appealed to the next level of review, Defendant Alvarez determined that the appeal should be partially granted, but did not make a determination regarding Plaintiff's suitability for transfer. In September 2008, Plaintiff underwent an examination to evaluate whether he was eligible for a medical transfer to another prison. He was noted to have asthma and the evaluation report stated that he was not eligible for transfer. In October 2008, Plaintiff tested positive for valley fever. He was started on Diflucan and examined again in November 2008. He had developed pneumonia and his condition was worsening. Plaintiff continued to have follow-up visits with PVSP medical staff through early 2009, but he was not transferred to another prison, even though he met the criteria for transfer. Plaintiff was transferred to San Quentin in the spring of 2009 as a result of another medical review of his condition.
Plaintiff claims that defendants have deprived him of necessary and adequate medical care and have acted with deliberate indifference to such needs in violation of the Fifth, Eighth, Ninth and Fourteenth Amendments. Plaintiff also claims that defendants have failed to establish, implement and adhere to policies, practices and procedures to assure that he received medical care and treatment or that defendants have adopted policies, practices and procedures that were ineffective in delivering medical treatment. Plaintiff further claims that defendants failed to instruct, supervise and train their employees. Plaintiff requests compensatory and punitive monetary damages and injunctive relief.
The Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted). "To the extent that the violation of a state law ...