The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER REQUIRING PLAINTIFF TO EITHER FILE SECOND AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE EQUAL , PROTECTION CLAIM (ECF No. 16) SCREENING ORDER
On May 14, 2008, Plaintiff Ramiro Romero, a former state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1). Plaintiff has consented to a Magistrate Judge handling all aspects of this case. (ECF No. 5). Plaintiff's First Amended Complaint is 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," or 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 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.
Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir.1987).
Plaintiff identifies the following defendants in this action: James A. Yates, Warden, Pleasant Valley State Prison (PVSP), Dr. F. Igbinoza, Chief Medical Director, PSVP, Dr. Duenas, and Dr. Ramirez. The Complaint alleges that the Defendants were aware that as a diagnosed asthmatic, Plaintiff was at increased risk of contracting Valley Fever. (Compl. at 4). Plaintiff further alleges that Defendants intentionally disregarded prison policy directing transfer of prisoners at increased risk of contracting Valley Fever, and kept Plaintiff at PVSP in spite of his known susceptibility to Valley Fever. (Compl. at 14). As a result, Plaintiff alleges he did contract Valley Fever. (Compl. at 4).
Plaintiff claims constitutional violations under the Eighth Amendment and the Fourteenth Amendment. The Court will examine each of these claims in turn below.
A. Defendants Yates and Igbinoza
Warden James A. Yates is alleged to have allowed Doctors Igbinoza, Duenas, and Ramirez to keep Plaintiff at PVSP even though Plaintiff qualified for transfer and even though other inmates were being transferred according to PVSP policy. (Compl. at 12). Beyond this, the Complaint does not identify how Defendants Yates and Igbinoza violated Plaintiff's constitutional rights. Doctors Duenas and Ramirez are the doctors alleged to have actually treated Plaintiff. There is no allegation that Dr. Igbinoza actually treated Plaintiff; rather, Dr. Igbinoza is listed as a supervisor to the medical staff at PVSP.
Under § 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
The statute clearly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978). Government officials may not be held liable for the actions of their subordinates under a theory of respondeat superior. Iqbal, 129 S.Ct. at 1948. Since a government official cannot be held liable under a theory of vicarious liability in § 1983 actions, Plaintiff must plead sufficient facts showing that the official has violated the Constitution through his own individual actions. Id. at 1948. In other words, to state a claim for relief under § 1983, Plaintiff must link each named defendant with some affirmative act or omission that demonstrates a violation of Plaintiff's federal rights.
The Complaint does not allege that Defendants Yates and Igbinoza personally violated Plaintiff's constitutional rights. Instead, Plaintiff asserts that Yates and Igbinoza participated in the alleged violations by virtue of the fact that they were in supervisory positions to Dr. Duenas and Dr. Ramirez. This is a conclusory allegation not supported by facts in the Complaint.
The Court will give Plaintiff leave to amend his complaint with regard to Warden Yates and Dr. Igbinoza. In order to state a claim against these defendants, Plaintiff needs to set forth sufficient facts showing that Yates and/or Igbinoza personally took some action that violated his constitutional rights. The mere fact that they supervised the individuals responsible for a violation is not enough.
Plaintiff's allegations of an Eighth Amendment violation are varied and numerous. Considering the Complaint in the light most favorable to Plaintiff, the Court construes Plaintiff's claims as alleging Eighth Amendment violations based on the Defendants' failure to protect Plaintiff from contracting Valley Fever, ...