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Harry Zelig v. Felix Igbinosa

May 31, 2012

HARRY ZELIG,
PLAINTIFF,
v.
FELIX IGBINOSA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER DISMISSING COMPLAINT FOR FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND (DOC. 1) RESPONSE DUE WITHIN THIRTY DAYS

Screening Order

I. Background

Plaintiff Harry Zelig ("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 filed his complaint on September 8, 2011. Doc. 1.

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, 556 U.S. 662, 678 (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.

II. Summary Of Complaint

Plaintiff was previously incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the events giving rise to this action occurred. Plaintiff names the following Defendants: chief medical officer Felix Igbinosa, warden James Yates, and federal receiver J. Clark Kelso.

Plaintiff alleges the following. On February 10, 2010, Plaintiff was transferred from CSP-Solano to PVSP. Compl. 4:2-3. Plaintiff had multiple serious medical problems and was transferred to PVSP even though he was endorsed for transfer to another prison. Id. at 4:3-4. PVSP is located in the most severe area of valley fever coccidioidomycosis ("valley fever"), an endemic, dangerous, and frequently fatal infection caused by soil fungus. Id. at 4:5-8.

Plaintiff contracted cocci pneumonia as a result of the transfer and almost died. Id. at 4:9-10. Plaintiff met all the criteria established by CDCR for exclusion from transfer to PVSP, namely inmates with serious medical conditions. Id. at 4:10-13. Plaintiff has a long history of insulin dependent diabetes, coronary artery disease with a triple bypass in 2006, poorly controlled hypertension, and all of the complications and disabilities related to the above. Id. at 4:13-16. Plaintiff also had malignant skin cancer in 2003. Id. at 4:16-17.

As a result of Defendants' conduct, Plaintiff's current medical condition was aggravated, including congestive heart failure, arrhythmia, exfoliative dermatitis, and extreme substantial physical pain, all related to the cocci infection. Id. at 4:18-22. Plaintiff also suffered extreme emotional distress and mental anguish because he believed he was going to die and that his life was shortened, making it impossible to parole. Id. at 4:22-25. Cocci infection has had a substantial, severe, and permanent affect on Plaintiff's lungs, heart, kidneys, skin, bones, and joints, causing Plaintiff severe and excruciating pain which is not controlled by medical that he is currently receiving, and adversely affected by his bipolar disorder. Id. at 5:23-6:1.

CDCR was notified by the Fresno County grand jury and the Department of Health that inmates within the exclusion criteria should be directed away from a cocci-endemic area. Id. at 4:26-5:4. The "directorate"and PVSP officials ignored a pattern of inmate complaints for transfer and an increase in the number inmates contracting cocci infections and resulting deaths. Id. at 5:2-7. They have also ignored meritorious claims for financial compensation for serious harm suffered from cocci infection. Id. at 5:7-10.

Defendant Kelso was aware of the pattern of inmate complains regarding cocci at PVSP. Id. at 5:11-12. Defendant Kelso knew of the dangerous and unhealthy conditions of the property at PVSP, and the increasing number of inmate deaths from valley fever. Id. at 5:13-15. Defendant Kelso did nothing meaningful to remedy the conditions. Id. at 5:15-18. Defendant Kelso failed to strictly monitor and enforce the valley fever exclusion policy which placed Plaintiff and other inmates at risk of serious illness and death. Id. at 5:19-23.

Plaintiff contends a violation of the Eighth Amendment, 28 U.S.C. § 959, and the California Government Code section 835(b).*fn1 Plaintiff requests as relief appointment of counsel, ...

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