The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, AND THAT THE DISMISSAL BE SUBJECT TO 28 U.S.C. § 1915(g) (Doc. 10.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
I. RELEVANT PROCEDURAL HISTORY
Plaintiff Rodney Smith ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 16, 2010. (Doc. 1.) On November 17, 2011, the Court dismissed the Complaint for failure to state a claim, with leave to amend. (Doc. 9.) On December 16, 2011, Plaintiff filed an Amended Complaint, which is now before the Court for screening. (Doc. 10.)
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 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 only 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 AMENDED COMPLAINT
Plaintiff is presently incarcerated at Kern Valley State Prison in Delano, California. The events at issue allegedly occurred at Pleasant Valley State Prison ("PVSP") in Coalinga, California, when Plaintiff was incarcerated there. Plaintiff names as defendants James Yates (Warden, PVSP), Matthew Cate (Secretary, Corrections and Rehabilitation, Sacramento), James Tilton (former Secretary, Corrections and Rehabilitation, Sacramento), Igbinosa (Chief Medical Officer, PVSP), and John/Jane Does 1-50 ("Defendants").
Plaintiff alleges as follows in the Amended Complaint. In August 2006, Plaintiff was transferred to PVSP. Defendants knew or should have known this prison was a "hot spot" for the disease known as Valley Fever. Although many deaths occurred at this prison from Valley Fever, the California Department of Corrections and Rehabilitation refused to close it down and violated many health and safety codes.
In November 2007, Plaintiff suffered from flu-like symptoms such as sore throat, persistent cough, chills, and night sweats. These symptoms persisted for a month, then stopped. In February 2008, Plaintiff requested to be tested for Valley Fever. Plaintiff was given a chest x-ray which showed signs of the disease, but the doctor claimed that a blood test came back negative. The doctor withheld this information to conceal the outbreak, working with the warden because of money cuts.
It was well known among inmates that doctors would hide results of the disease and make false entries in medical records.
On June 13, 2008, Plaintiff was seen at the PVSP medical clinic. Although doctors claimed an x-ray did not indicate any signs of lung problems, Plaintiff was prescribed the medication Fluconazole and Vitamin C, the standard treatment for Valley Fever. The doctor knew that Plaintiff had this disease and tried to hide the fact, as shown by his strange behavior in Plaintiff's treatment.
On August 6, 2008 and December 30, 2008, a worker was fired for telling inmates the truth, so Plaintiff then tested positive according to the doctor. The doctor knew or should have known that Plaintiff had a lesion at the base of his right lung.
Plaintiff cannot perform any strenuous exercise without experiencing shortness of breath ...