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Joshua Aaron Kershaw v. Matthew Cate

March 27, 2012

JOSHUA AARON KERSHAW,
PLAINTIFF,
v.
MATTHEW CATE, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FIRST SCREENING ORDER REQUIRING PLAINTIFF TO EITHER FILE SECOND AMENDED COMPLAINT OR NOTIFY COURT OF WILLINGNESS TO PROCEED ONLY ON COGNIZABLE EIGHTH AMENDMENT CLAIM AGAINST DEFENDANTS DUTRA, BROCKMEYER, AND LEE (Doc. 7) THIRTY-DAY DEADLINE

First Screening Order

I. Screening Requirement and Standard

Plaintiff Joshua Aaron Kershaw, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 11, 2011. On July 20, 2011, Plaintiff filed an amended complaint as a matter of right. Fed. R. Civ. P. 15(a).

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff's complaint, or any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 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 threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)) (quotation marks omitted). While a plaintiff's allegations are taken as true, courts are not required to indulge unwarranted inferences. Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (quotation marks and citation omitted).

Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at __, 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969.

II. Plaintiff's Eighth Amendment Claim

A. Allegations

Plaintiff is incarcerated at Pleasant Valley State Prison (PVSP) and he brings this action against Secretary Matthew Cate, Warden James Yates, Acting Warden R. H. Trimble, Associate Warden Jonathan Buckley, Lieutenants Bennett and Greene, Sergeants Hosman and Wilson, and Correctional Officers Dutra, Brockmeyer, and Lee for violating his rights under the Eighth Amendment of the United States Constitution.

Plaintiff is a fair-complected inmate who burns quickly and easily in the sun. At his prior prison, he was provided with SPF 30 sunblock, but he was denied sunblock at PVSP and he was unable to purchase it for himself due to his indigency. In 2009, PVSP instituted a policy requiring inmates to wait outside the medical/dental clinic for their appointments, despite the availability of a large holding cell inside the clinic. The waiting area was unsheltered from the elements and inmates had to either wait outside or "refuse" their medical or dental appointments and return to their cells.*fn1

Plaintiff injured his knee on May 30, 2010, and his leg was placed in a cast. On five subsequent occasions identified in the complaint, Plaintiff was summoned to the medical clinic for appointments and forced to wait outside in the direct sun for between 3 and 5 hours. Each time, he sustained sunburns.

On July 9, 2010, Plaintiff waited outside from 9:00 a.m. to 1:30 p.m. and he sustained a sunburn which turned his head, neck, and shoulders deep red. The burned areas were painful to touch and peeled afterward. At 11:45 a.m., Plaintiff went to the clinic and asked Defendant Dutra if he could wait in the vacant holding cell inside the clinic. Plaintiff complained he was starting to turn red from sunburn and his injured leg was throbbing. Defendant Dutra laughed, said no, and told Plaintiff he could refuse his appointment and go back to his building. Plaintiff then complained to Defendant Brockmeyer, who told him to go back outside and wait or she would send him back to his unit and call for him at 2:00 p.m., when he could really feel the heat standing outside. Plaintiff went back outside, where he remained until 1:30 p.m.

On August 9, 2010, at 11:30 a.m., Plaintiff was summoned for a nurse's appointment. At around 1:30 p.m., Plaintiff went to the clinic and asked Defendant Dutra if he could wait indoors because his leg was injured, his skin was sensitive to the sun, and he was unable to afford sunblock. Defendant Dutra denied his request and told him he could refuse his appointment and go back to his building if he did not want to stand outside. Plaintiff was called for his appointment around 2:30 and he sustained another deep red, painful sunburn to his head, neck, and shoulders, which hurt to the touch and later peeled. ...


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