The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REQUIRING PLAINTIFF EITHER TO FILE SECOND AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE RESPONSE DUE WITHIN 30 DAYS
Plaintiff Joel P. Whitney ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing his complaint on October 20, 2010. Plaintiff filed his amended complaint on April 21, 2011. Doc. 9.
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 or 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
Plaintiff is currently incarcerated at Avenal State Prison ("ASP") in Avenal, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: J. Walker, chief of medical inmate appeals; James D. Hartley, warden of ASP; Ellen Greenman, chief medical officer of ASP; Donald B. McElroy, CEO of health care services at ASP; M. Boparai, chief physician and surgeon at ASP; S. Malogi, health care advocate at ASP; and G. Campbell, medical doctor at ASP.
Plaintiff alleges the following. Plaintiff was diagnosed with prostate cancer on May 26, 2009, of which Defendants were aware. Am. Compl. ¶ 15. Plaintiff received forty radiation treatments from August 5 to October 2 of 2009, of which Defendants were aware. Id. ¶ 16.
On November 20, 2007, CDCR issued a memorandum concerning "exclusion of inmate-patients susceptible to coccidiomycosis from highest risk (hyperedemic) area institutions." Id. ¶ 17. ASP was one of the eight listed institutions as highest risk for coccidiomycosis (valley fever). Id. Defendants were aware of this. Id.
The memo further cited that inmate-patients with cancer as one of the classes of inmate-patients who, by definition, were described as "susceptible" to valley fever and who "cannot be housed at institutions within the [valley fever] hyperedemic area." Id. ¶ 18. Defendants did not transfer Plaintiff out of the area. Id. Defendants knew that Plaintiff was at an increased risk because he had cancer and was receiving monthly injections of Lupron, which weakened Plaintiff's immune system. Id. ¶ 19.
Because Defendants did not transfer Plaintiff, Plaintiff was hospitalized at Bakersfield Memorial Hospital for two weeks. Id. ¶ 20. Part of Plaintiff's left lung was removed due to disease from valley fever. Id.
Plaintiff tried on numerous occasions to be transferred, but was denied. Id. ¶ 21. On May 4, 2010, Defendant Campbell diagnosed Plaintiff as having moderate-to-severe stage II-III Chronic Obstructive Pulmonary Disease (COPD) asthma." Id. ¶ 22. Plaintiff submitted a 602 inmate grievance informing Defendants of his serious medical condition and medical need. Id. Defendants did not transfer Plaintiff to another institution. Id. Dust storms frequently occur in this area, which aggravates Plaintiff's asthma. Defendants prescribed various drugs for Plaintiff's asthma, which he contends is ineffective during dust storms. Id. Plaintiff contends ...