The opinion of the court was delivered by: Dennis L.Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM (Doc. 14)
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.)
On October 12, 2010, the court screened Plaintiff's complaint, dismissing it with leave to amend. On November 15, 2010, Plaintiff, through counsel, filed a First Amended Complaint ("FAC"). Plaintiff's amended 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 FIRST AMENDED 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), California Department of Corrections and Rehabilitation ("CDCR"), California Prison Health Care Receivership Corporation ("CPHCRC"), William F. Alvarez (physician, PVSP), John G. Diep, M.D. (physician, PVSP), and Dr. Duenas (physician, PVSP). Plaintiff also names Does 1-20.
In the FAC, 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 initially noted on his medical history form, but these conditions were later noted in his medical and inmate records. In approximately November 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.
On or about, May 29, 2008, Plaintiff filed a "602" to appeal his transfer eligibility. On July 29, 2008, Defendant Diep determined that Plaintiff did not meet the criteria for transfer, opining that Plaintiff had stable asthma. 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.
In September 2008, when Plaintiff appealed his 602 to the next level of review, Defendant Alvarez refused to order that Plaintiff be transferred.
On or about September 15, 2008, Plaintiff underwent an examination to evaluate whether he was eligible for a medical transfer to another prison. The examiner contacted Dr. Duenas, who refused to approve a transfer. Plaintiff was noted to have asthma and the evaluation report stated that he was not eligible for transfer.
On or about September 19, 2008, Plaintiff appealed Dr. Alvarez's decision to the Director's Level. Defendant Kimura-Yip denied Plaintiff's request for transfer at the Director's Level. 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 Alvarez, Diep, Kimura-Yip, and Duenas knowingly disregarded an excessive risk to Plaintiff's health and failed to respond to his serious medical needs by refusing to order his transfer in violation of the Eighth and Fourteenth Amendments to the Constitution. Plaintiff also claims that Defendant Yates failed to ensure that CDCR's policies were implemented and he refused to order that Plaintiff be transferred to another prison. Plaintiff further alleges that Defendants failed to implement and adhere to policies, practices and procedures to assure that Plaintiff received medical care and treatment or they have adopted policies, ...